The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-10-18

from the Judgment entered blythe majority He
differed from II IN his views, both OF law aud fact
each OF which he discussed at great length aud
summed up his conclusions as f0llowsi-
First Unless the vote OF whole divisions is re.
1ected absolutely in the computation of majOrties,
each Of the respondents received n majority of
votes at the election in October 1868,
Second Adopting even the rule of the majority
Of the Court and adding to the maiorites not con.
tested the unassessed votes proved or accounted
ney and Daniel NJ. Fox was elected Mayor.
Third If every illegal and unassessed vote is re.
jeced in the final count the respondents with the
possible exception of the Receiver of Taxes, re-
ceyed majority of the votes cast in october, 1868
Fourth II in every case lin which the majority
of votes were cast for Respondents and are now
attacked) the returns are rejected, unless the me-
cessary steps are taken to ascertain the legal votes
not decide these cases upon their merits
Fifth Without proof of the number of legal
votes OF unnaturaZed citizens illegav rejected at
the October election OF 1868, this Court cannot de-
eide these cases ON their merits, and we ought to
make an honest effort to ascertain this vote and
Sixth Without the proof above specified the
court cannot legally ascertain the majorlties Tor
ana one OF the contestants, and cannot, therefore,
declare either OF them elected
therefore dissent from the opinion Of the ma
lOily oil the Court i'll so far us results are ascer
tained and declared.
Opinion OF Judge Allison.
desire to add but few words to what my
brethren have said Last year, when the contested
elections were before the Court, desired TO secure
the adoption of the rule which is now adyOcatedby
my brother, Ludlow, with so much earneStueSS and
zeal. In this was unsuccessful. Judge Perce,
agreeing with me in the view which is expressed at
length, in the opinion which 1 then delivered
(BrewSters reports), but differing with me as to
the number Of election divisions to which under
the proofs il ought to be applied. Judge Brewster
did not see his way clear to assent to the principle
which Judge Peirce and myself agreed To adopt
Judge Ludlow, who did not sit with US in the argu-
ment OF the cases then before us for reason
which we all agreed was q proper reason, was
in their consultations, and assist them by his ad
vice AT that time his view was most decided, and
the expression OF 1t as emphatic as 1t could be
made against the adoption OF rule that would
send an election contest back to the Examiners to
take proofs OF the legal vote ior the purpose OF re
storing to the count and adding it to the undis-
puted vote as returned for the several candidates
This advice had doubtlessy much influence in pre-
venting the adoption OF the rule which he now ad-
! vocates and which | hoped to see applied to the
| then pending cases, and to subsequent cases as
The persons going into Office under the certid
| Gates of election would have remained in Oiiice
until the proof of the legal vote had been taken,
| they asserting their ability to show by such Il
course Of investigation their right to the several
offices in contest claiming That they were legally
The refusal of the Court to give them the oppor-
tunity to make such proof, turned the CONTESTANTS
! out OF Court without further remedy. We are ad-
| ysed that it would be proper to give the present
! incumbents an advantage which we denied to the
My brother, ,.l1udlow thinks we ought now to
| adopt the rule which was then rejected, which
would be TO hold that that which was bad in prin-
cple and vicious in practice year ago, IS sound in
| principle and wholesome in its application twelve
| month later My objection to this IS not TO the
first portion OF the proposition; but 40 OBJECT TO
| the Court doing that, which, in my opinion, would
| make them justly chargeable with unfair dealing
! toBuitors in The contested elections which we are
| now deciding.
We ought not to say that given principle will
! not be applied to the determination of election
cases; TO keep silence for Il whole year; giving
suitors no intimatiOn of Il change OF purpose, and
at the last hour spring on them Us 1t were, the ap
| plicaCiOn of the very rule which the Court in the
cases which preceded those now in contest, had re.
fused to adopt. This would be to mislead the con
teStants, to spread for them snare by which they
would be entrapped; to dig q pit, and keep it con
| would fall This do not propose to do and there
| fore cannot consent to the proposition of oul
brother Ludlow to send these cases back to tht
| Examiners. If we should be 50 unfortunate as tx
have other cases of this kind to consider and de
eide, in the future, we can at the start give Sucl
notice to the parties as will prevent injustice t.
any one should we then conclude to apply the ruiz
which Judge Ludlow thinks ought now 10 be en-
Reply OF Judge Ludlow.
l took no part in these eases officially, and To-
the reason that had been candidate at the elec
ton.
| cases ought not to go back to the Examiner; and
| majority OF the Court also thought SO but To say
that as legal principle ever held that they coull
not be sent back by the Court and ought not i'll any
case so to be, Is clear mistake.
! Had entertained any such opinion, these cases
| would at once have changed II, for L have been
| taught that in no way, except by reference back
to the Examiners can the merits OF these cases Dt
| determined,
| BAr. ShepPard's Case in the Supreme Court
After the Judges had concluded the reading Of
the Opinions, Mr. Sellers for Mr.. Sheppard, called
the attention Of the Court to the fact that certio
Tdri had been taken in that case, IOr the purpose
of removing the record to the supreme Court This
applies only TO the District Attorney. Whether
| Mir. Sheppard retains the Office while the case j.
pending in the Supreme Court, will probably be de
termined today.
oESSlNO GLASSES, ETC,