The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-02-16
LEGAL INTELLIGENCE.
Tho City COmmtesiOner Case-Opintom
by the COurt-Mr. GlVen's Answer Sus-
tanned and the Case 60 Proceed.


quash MIR. Ovens answer. The opinion was
concurred in by Judges Ludlow and Pierce, and
is as follows:-
In the matter of The Contested Election of city
Commissioner ..
This is a motion to quash the answer Of the
incumbent, John Given, and the cause assigned
in support Of the notion SO far as 1t relates to
specifications from the drst to the eighth 1nclu-
slve, rests upon q charge OF indehnteness and
uncertainty as to each of said specifications.
But this charge cannot be supported II the pre-
vious decisions of this Court, and the precedents
established thereby, are to be regarded as OF
authority upon question OF this character.
These specifications are to a great extent identi-
cal in form with the specification contained IN
the complaint and petition OF the contestant in
the case of Mann and Cassidy which the Court
re used to strike from the petition, holding that
all that can he required is that the allegations
to be proved shall be stated IN an intelhgible
manner and with due precision, and thar the
facts set up as the ground for contest, II sus-
tanned by proof, would sho y that there mad been
an undue election and a false return
In the first specification the precise statement
is made that three hundred and sixteen votes
were taken and counted tor David p. Weaver IN
the Seventh Division OF the ralrd Ward whereas,
in truth and in fact, three hundred aud six
votes only were received for him Tor said Office
OF City Commissioner in said DIVISION. Aud in
each OF the following specifications, from the
second to the eighth inclusive, it is in so many
words stated that given number OF votes were
taken and counted in each OF the election divt
siOns named tor David p. Weaver which votes
were received by the several election officers
from persons none of whom we're qualified
electors
This, we think, meets the requirements of the
law, and is a sufficiently precise statement of
facts materiI to the issue, ramely, the reception
and count tor David p. Weaver OF definite
number of Illegal votes at given election pre-
cinct. which, If proved to be illegal, would have
TO be deducted from the whole number which
he is returned as having received at said cleo
tiOn.
1t is objected, that the reasons upon which the
charge Of lllegatv of the votes received is based
are not particulariZed nor are the names OF
the illegal voters mentioned But OF wat ac-
count is it. if vote has been received which
ought to have been rejected whether the voter
was disqualified by reason of non-payment of
tax, or because of homage, or want OF naturali-
cation, or in default in making the necessary
proof Of residence 1t is the fact that person
not a qualified elector is permitted to cast his
vote which is OF Importance to be proved, and
the disqualification is as well established by
showing one ground of illegallty as another.
Aud in Kneass' case, the Court decided that the
list of names appended to the specification
unnecessary, regarding it only as proof; and this
was afterwards reatfirmed, in the opinion of
Judge Thompson, in Mann's case on the motion
to quash.
Nor do we agree with the suggestion, made at
the argument that ditierent rule should be
applied to the answer OF an incumbent, from
that which has beep held to govern the petition
OF the contestants. The same degree of hbe
| allowed TO the other. For although it is true
that the incumbent, who is called to reply to the
case made out against him by the evidence OF
the petitioners, has usually full time in which to
prepare his answer, yet the privilege of amend
ment which is so freely granted to the contest
| ant permits him to remedy any defect in his
complaint which may have crept into it, by
| reason of the limited time allowed for filing the
| petition. ID.
The ninth tenth eleventh. and twelfth speci-
| fcations, which are somewhat extended, when
| ,iV,ad IN in 10 In UID DCg
| distinct grounds of objection to the election as
conducted in the sixth, seventh, and eighth elec-
tion divisions Of the Fourth Ward, ard The fourth
| election division of the Twenty-fifth Ward, and
upon which, If proved, we are asked to strike
| the whole number of votes polled IN said pre-
cncts from the general return:-
First general disregard of what has been
| telmed the directory provisions OF the election
| law.
Second. A charge of fraudulent combination,
| by the majority of the voters in said election
divisions, to deprive the minority of the right to
have an Inspector at the election representing
their political views, contrary to the intention
and spirit of the act of Assembly.
Third. A precise allegation that not less than
two hundred illegal votes in each OF said elec-
ton divisions were received and counted for
David P. Weaver, and that in the Sixth, Seventh,
and Eighth Precincts OF the Fourth Ward the
Return Inspectors frauduently returned a less
| number of votes as having been cast for John
| Given, for City Commissioner, than were IN
tact poled for him, TO the aggregate number OF
| thirty-seVen and upwards
| " would be useless consumption OF time TO
| go into an extended examination and discussion
of the causes of complaint which fall within the
| the first classification. For il one rule has been
established more firmly than any other, by re-
peated and consistent course OF decision by this
Court, in relation to an investigation or an undue
election, false return, 1t Is that the careless
| or ignorant, or even the wilful neglect OF the
| directory requirements of the election law,
| cannot operate to nullity the election. In
Boileau's case, Carpenters case Sperretts case,
| Kneass' case, and the opinion of the Court on
the motion to quash in Mann's case and the later
| case OF Thompson and Ewing, the course oi
decision is uniform and consistent, holding thai
tine Court are required to look into the good
| faith and Integrity Of an election, rather than
| 10 the manner in which 1t was conducted; and
that the expression OF the popular will Is not TO
| be defeated because of an omission TO comply
with the formal though doubtless important
requirements of the law, which were intended
as checks and guards thrown around the con-
. | ducting of an election with the view TO main
| tain It's parity and regularity. In Kneass' case,
| 2 Parsons, 557, the Court say:-"We do unheslta-
| tingly rule that all irrelevant or general allie
} cations and specifications which DO not ahec'
the merits of the case or the general result
will be stricken from the petition"
But il is also as clearly and firmly settled, a:
an established principle, that where such neg
e lect of formal and, in themselves considered i'm
! | material duties, in so far as they Affect the
merits of the question, is coupled with the
E charee of wilful and deliberate fraud; of such
= gross misconduct on the part OF the election
| officers as interferes with and prevents free
| eection being held; and OF tine wlful and per
| sistent neglect to perform the essential duties
| which the law requires them to perform, whlcl
r | are in no proper sense directory merely bu
which 90 TO the heart OF the question OF al
| undue election and a false return, that the Cour
will allow such allegations to stand, and in
j | proper case and in due time will go into al
/ 80 OH al