The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1869-10-18
THE ELECTION CONTESTS.
The Court Decides the Controversy by
Retaining Mr.. Fox as Mayor, and Cast
ing OUt the other Gncumbents--.
Judge Ludlow Dissents.

The contested election of 1868 has at length been
set at rest. For one whole year it has consumed
the time and attention OF the Court, has eaten the
public money, and has held in harmful doubt the
title TO the most important municipal and county
offices but now It Is a thing of the past On Satur
day, at u o'clock, the Judges OF the Common Pleas
assembled before large and excited audience to
pass their judgment upon It, Judge Brewster de
livered the opinion Of the majority and Judge
Ludlow afterwards read an opinion, dissenting
from the views OF his brethren.
Judge Brewster's Opinion.
After referring to the disfavor with which the
Courts OF TINS country and OF England have re-
tious and intricate, imposing as they do so heavy a
responsibility upon the Court, Judge Brewster de-
lNering the opinion OF the majority of the Court,
spoke of the presentcase in substance as follows,-
We have before us petitions contesting the titles
Mayor District Attorney City Solicitor City Con
toer Receiver Of Taxes, City Commissioner and
Prothon0taIy of the Court OF Common Pleas. To
each Of these an answer has been filed. The peti
tions all charge an undue election and a false re-
turn, and they all contain numerous specifications
charging certain alleged frauds with great particu
laltty. The answers deny the averments OF the
ties were in fact greater than certified by the cleo
ton officers: In support OF this allegation num-
Der of specifications OF Illegal and fraudulent acts
are given in detail by each respondent. Many Of
the issues thua presented by the peadings were
would warrant either party in pressing them upon
our considerations and they were with great pro-
priety either formally or tacitly abandoned upon
the alignment The remaining positions assumed
by the respective parties may be thus stated -
The $ & ask us e. entirely reject l the
Ward the Sixth, Seventh and Eighth Divisions of
the Fourth Ward the Sixth and Seventh Divisions
OF the Seventeenth Ward, and the Fourth Divi-
sion of the Twenty fifth Ward.
E2 To reject the entire vote poed during the last
three hours in the Eighth Division OF the Ninth
8. To give to contestants the benefit of a recount
Twentieth Ward.
The respondents insist that 10 one of these re-
quests shall be granted and in their turn maintain.
l. That the petitions contestng the Offices OF Dis
trict Attorney and Prothonotary of the Court of
Common Pleas should be dismissed because the
cases have not been determined "dt the neat term
after tlG election"
turns from the Second and Tenth Divisions OF the
First Ward, and the Tenth Division of the Nine
teenth Ward, because of alleged frauds and vio-
lence
8. That the returns from thirtynine other diyi-
siOns should also be rejected, because of the de-
signed exclusion by the election officers of certain
persons claiming to vote upon naturalization
papers issued by the Supreme Court
4. That 1ftytwo votes were received from con-
testants from persons who, it is alleged held
fraudulent naturalizatio9 papers IT is therefore,
5. That thrty-siX naturazed citizens who offered
to vote for the respondentS,wer not allowed to do
so, and that the majorites returned should accord
lngly be increased.
The statement of these various propositions con-
tains the measure of the work which is before US
and we shall discharge our duty here as briefly as
is consistent with due regard to the Importance
OF the questions thus presented for our cOnsidera
The first point to be considered is the power of
the Court, which has been questioned by the re-
Sp0ndentS.
Citing tie act of 1889, and many decided cases,
We regard then the power to throw out return
in pr0per case as existing, and as applicable alike
to municipal and county elections.
And this brings us directly to the heart of this
contest-whch may be said to lie beneath the ques-
tion-lOhen ShGU division be stricken out? 1t is
conceded in the able argument of Mr. Sellers, that
"a poll should be excluded where it is closed in
point of fact OF in point OF law" This is the princi-
pie laid down in the Penn District q Parsons,
526) But it must be admitted that this does not
the BlOcley election (Ib. 534( ballots were rejected
because the tickets contained one name too many
although the additional name was stated to be for
vacancy which did not exist. If all the votes in
a division were so misprinted, clearly the whole
poll would have to be rejected. In Mann VS.. Cas-
sidy (supraJ, Judge Thompson held that where the
whole proceedings are tarnlshed with fraud the en-
tire returns WI De aeectead doe IN soI LIhom6pson 6p vs.,
conduct Of election officers may (tho,tgb actual
fraud be not apparent) amount to such gross and
ciaf duties as to render their doings unintelgble
or unworthy of credence, and the results of their
action entirely unreliable for any purpose. In the
same case, Judge Ludlow, referring to certain
precinct, said We must reject the enttre, cote
polLed i'll this division, because we cannot lCM GER
tdinty determine which candidate received ma
iority of votes" lnspealing OF another return, he
III it had appeared that because of a dis.
regard Of the directory provisions OF the election
laws, a fIand or mistake had been committed
tending to cast doubt upon, endanger or destroy
the rights of the respondent we would inStdnt5
reject elefU TOt9 cast, because In6n we WOulu Dt
unable to discover the true majority of the votes
In Weaver VS.. Given (supra), President Judge
Allison reaffirmed the doctrine above quoted from
Thompson VS.. Ewing, and in the contested election
of 1867, (Salrd) the same learned Judge gave addl
tional emphasis to the principle thus announced
In the same proceeding took occasion to say tina
the remedy should never be applied except in tn
EXTREMIST case, and that "lmposslblltty" was tn
test My brother, Judge Pierce, also concurred il
the views of the President Judge.
From this review OF the decisions OF our prede
ceSSsors and ourselves, there would seem TO be al
unanimous conclusion that wherever DlylsOI
Return is attacked, and the result cannot be ascer
tained the poll is to be rejected. Aud this, Whethe
the disturbing cause be fraud OF gross ana cul
pable negligence, or even in the language OF III!
brother Judge Ludlow, "mistake."
1t matters not, then, what has produced the mis-
chief the question is, after all, can the Court Sf
out the result? Can we separate the pure golC
from the drOss? Is it possible To reach certainty
or even aI approach to certainty?
With this principle for our guide, nrmy esta
our reason and our love OF justice, let us approach
the settlement Of this controversy
The first specification TO which our attention wa
called in the argument is that which assalls the re
~ turn from the Seventh Division OF the Third Ward
1t is charged here. as elsewhere, that the 'oticer
of said division fraudulently carried on said elec
ton with Il Wiful disregard OF All the require
ments of the laws regulating elections, by means
of which only the true votes and viii OF the people
could lie ascertaned." To this general ayernen
are attached specifications which may be con
denSed into q charge that every uuIy elJolheo U.
This is emphatically denied by the answer
careful examination OF the proofs SHOWS Una
upwards Of Onetenth OF the entire vote Of thi
division was fraudulent; that the record or TN
election was falsifed by marking persons as yotin
who it is conceded, did not vote, and that larg
number OF voters We're not marked as voting o
the list of taxables. 'These talSlhcations or AM
omissions from the record, amount TO upwards o
one sixth of the entire list and from these tire
sources of attack nearly oneSlird OF all the vote
ooet 20 .iasfroVpd This. il will be understood,