The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1866-07-14
LEGAL INTELLIGENCE.
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The Case of the Election of
City Commissioner.
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DECISION OF THE COURT.
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Opinion of Allison. II. y.
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MAJ. DAVID P. WEAVER AWARDED
THE OFFICE.
DECISION OF THE COURT.
Opinion of Allison, II. y .
ETC.. Etc, ETC., Etc, ETC.. ETC., Etc.


Court OF COMMON PLEAs-President Judge
Allison and Judge Pierce.-The Oiy COn1BliS-
siCner Contested Election Odse-Decision in FdoOr
OF DdUid p. Weauer.-The Court this morning
decided the celebrated City Commissioner con-
tested election case OF Weaver VS.. Given, decree
ing that David P. Weaver was duly elected to
the Office of City Commissioner on the second
Tuesday Of October last
II would have been well, we think if they had
further decided that MIR. Given should bear all
the innumerable expenses which have been
incurred in contestng successfully his fraudu-
lent attempt to force himself into an official
position to which he was not elected by the
people. The opinion OF the Court delivered by
the President Judge, is as folows:-
In the Matter of the Contested Election and
Return OF John Given to the Office OF City
Commissioner.-Allison, p. j.
THIS case, as it stands before the Court upon
the testimony which has been taken by the
respondent, John Given, and the rebutting tes-
timony of the petitioner, is ripe for final iudg-
ment il, upon the consideration of that testl-
mony, we should be OF the opinion that it is net
our duty to send the case back to the Examiner
TO take further proofs, under the specifications
| contained in tbe answer, which charge that III
| the several election divisions therein mentioned
the directory provisions oil the election laws
have been to a great extent disregarded and
omitted, and which contain also charges of gross
misconduct and official misbehavior on the part
of the officers of The said election divisions.
The respondent asked 10 be allowed to prove
| the truth OF the allegations therein contained,
| in support OF his claim, to have eXclu led from
the general return the entire vote OF the election
| divisions enumerated In the answer, in which
| gross frauds and irregularities are asserted to
| have been committed.
For the reasons assigned in the opinion of the
Court upon the motion to quash the answer, we
held hand reSDOnuent.
| as to prevent his taking testimony in support OF
| these allegations, until he should first have
| exhibited his proofs of positive and specific
| frauds in the vote cast or returned for David p.
| Weaver at the election In October last which,
| in his answer, he asserts to De more than sut.
| cient to oVerbalance Weavers majority alter
| the rejection of the army vote, and wnIch he
| claimed TO have deducted from the aggregate
| return for Weaver.
| We then said, il the respondent can success
| fully attack any considerable number of votes
cast for David p. Weaver, so as to approach his
majority, based on calculation which excluded
| the army vote from the count and which, as
the case then stood, gave to Weaver an apparent
majority OF co., We will then be prepared to
open the door for an examination into charges
OF official misconduct on the part OF the officers
Of the election. The question which we are
| now required first to consider is, the one thus
reserved. What does the evidence as now pre-
sented demand at our hands "a decision on the
| proofs as they have been submitted or ought we
to advance to the investigation of charges of
| To the opinion which we expressed on the mo-
| ton to quash we still adhere, that the bold and
| 1agrant fraud connected with the army VOTE
| which was established beyond successful contra
dictlon or reasonable question, required us to
hold that nothing short OF proof of fraud equally
| specific and direct ought to be weighed Oy tAe
Court as set-off to deliberately planned sys-
tenn of wholesale forgery, which, before the
Return Judges, overthrow the real majority OF
Weaver, as it appeared upon the face of the
returns of the home vote, and gave the election
to Given by majority OF 322
We said to the respondent that a forgery, so
gross and extensive in its character, so defiant
in its assault upon the expressed will of the
people, and so successful In its intended purpose,
when detected and exposed by the clearest evil
dence, which was wholly uncontradlcted, ought
net to be allowed to be turned aside or over
| come except by the establishment of other
| rauds-plain, palpable, and dlrect-atfectlng a
| sufficient number OF votes to change the result,
| which would be reached If the case rested
where the exclusion OF the military vote placed
| it, Our language Was-"lf this cannot be done,
| we are of the opinion that evidence should not,
| in case like this one, be allowed to be gone
into, with the view of establishing certain
alterations, from which we are to be asked to
| infer fraud"
An examination of the evidence taken before
the Examiner, with the exception OF that por
tion of il which attacks small number OF
votes clearly proved TO oe Haudulent, satlsheS
| us that il falls far short of the prescribe
} standard. To very large extent, 1t Is made uI
of the testimony of searchers, who were sent tC
make INQUIRY for the persons whose names were
found on the lists of voters, as they were re
! ! | turned by the officers of the election.
This kind OF evidence was hrst allowed TO bt
| introduced in q contest of this character, II
Alann's case, where, after long and earnest dis
cussion, it was decided that 1t was an item o
proof, that although it was liable to the oDlec
tion OF being heaTsay testimony, yet IRON th'
necessities of the case il was proper TO alloy
the results of such an examination aud searcl
TO be submitted, along with other evidence II
the cause to the consideration OF the Court ant
to be Judged of by the intrinsic evidence OF II
worth in each election contest as 1t shoald b
presented.
But in the final opinion in Mann's case, Judg
Thompson says; I'VE consider the evidence as T.
residence, as derived from the canvassers ol
both sides, and from the assessors, as too unrt
liable to torn the basis of q decision"
The whole number of votes cast for or II
| turned for the contestant, which are sought b
be attacked by the evidence produced By che n
L spondent, other than the testimony of the car
] yassers fall short, as we compute them, &
seventy votes leaving all that remains of tn
entire number, whose honesty or legality was i
{ any way impeached, to rest upon the testimon
of the searchers, which, as we have seen, wa
"a held by the Court In the case 10 which the pre-
cedenE was established for the introduction (