The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1871-01-11
legal xHTTnLLIanNcn.
Contested Eiection-Price We. Lynd-rroubie
with "a Pr9thonotary.

Contested EIectIou-Price va Lyud-rroubie
with "a Prothonotary.
Court Of Common Pieas-Jtdge LudLow.
This morning David w. Sellers, ESQ, came
into Court and stated that a proceeding was
about to be instituted before the Legislature
contestng the seat of James Lynd as as Asso-
ciate Judge of the District Court, and in order
thereto the law required a certificate from the
ProthoDOtary of this Court that at least City of
the siguers 10 the petition were qualified cleo
tors. The petition, with the names of some of the
most prominent citizens of the community, had
been presented TO Mr.. Douegan, the Prothono.
taIy, and his certificate requested. He refused
to sign it, and therefore 1t became necessary TO
present the following petition to the Court
To the Honorable the Judges OF the Court OF
Common Pleas s:-Ihe petition OF David w, Sellers
respectfully showeh to the Court that he IA petit
tionsr with more than fifty other qualified electors
Of this county TO complaint setting forth undue
election and false return in the Office OF Associate
Judge Of the District Court of the County OF Pha-
delpha in October last past which said petition and
complaint require a certificate to be attached from
the prothonoary that at least fifty OF the petitioners
at the time Of signing were duly qualided
electors That said petition and compliant
were presented to Richard DOnegan Ptothonotary
of this Court, on january II, ISL with a re9ne5t
that he should sign said certincate, and with the
offer on the part OF your petitioner to depose
that he knew at least fifty OF SAID petitioners
qusl1hed electors but that said Richard Donegau
refused TO sign said certificate And your petitioner
further saith that unless said petition is presented
the organization of the Legislature (Which took
place on the third day OF the present month),
u
not be according to law, and no Jurisdiction would
attach to proceed on said complaint and Petition
and fofasmuch as the case is one Of exigeney, and
no speeGT remedy exists your petitioner prays that
the said Richard Donegau viii be forthwith COM
DAVID w. SELLERS.
Mr.. Sellers requested that the Prothonotary
be sent for in order that he might explain his
refusal to do as required
Mr.. Donegan came in aud said that when the
request was made he could not certify that the
petitioners were qualified electors, because he did
not know it of his own knowledge, and did not
choose to stretch his conscience on that point.
He said he had not had an opportunity to OK
anime the names
Mr.. Sellers fatty contradicted him by saying
that he had twice offered him the petition, and
he had each time pushed IL away from him, de-
ciDiDg to have anything to do with it.
An angry alteration was about to take place
between the Prothonotary and Mr.. Sellers,
which, however, Judge Ludlc9 prevented by
SAYING
"Mr. Prothonotary l, as a judge of this court,
now hand you this petition, with the names OF
the petitioners, and direct you Je examine them
in order to satisfy yourself that they are qua
lifted electors, and if, upon oath being made
before you, of their qualifications, you still re-
fuse to sign the certificate, we shall have to pro-
ceed a. directed by the act of Assembly Now
take this and report by 12 o'clock"
Mr.. Donogan took the paper and left court.
The following are some of the signers to the
petition, OF whose qualifications as electors the
certificate is wapted:-
William A. Porter, George NJ. Dallas, E. r. Cope,
G 1ngersolli Thomas "; Price, n. II. Sharpless, A;
N. Burton, David w. Sellers, John Samnel, Richard
VauX, Simon Arnold, G. M. Husbands, George Nor
thrCp and Others.
At 12 o'clock the Prothonotary returned,
handed the petition back to the Court and
said:-
"With all due respect, your Honor, do not
see that can sign the certificate
Judge LudlOw.-"let an alternative mauda-
mus issue returnable at o'clock"
AT O'Clock counsel stated that there had oeen a
difficulty in the PTothonotary's office about the form
writ had been made out: but Mr.. Sellers said that
as the Prothonotary himself had TO make ont his own
writ to be served upon him. and he was fully cogni
zsnt of the meaning of the ORDER he certainly ought
| to make return at once.
| Counsel representing Mr.. Donegan said they would
make return as soon as they saw the writ. They
| wished to make several points: one that he, not
beng custodian OF the list or voters, was
unable to certify that these petitioners were qualified
electors; and the other, that the act OF Assembly
under which this demand was made was unconsti-
tutona, IN that 1t required Judicial act OF an ex-
Judge Ludlow suggested that II oath was made
before the ProthonOtary OF the qualifications Of
these electors he could certify that upon this am
davt he believed them so 20 he. This might be uffi-
cient and save further trouble. He gave him until
O'Clock again.
At 2 O'Clock the Prothonotary made the following
| return to the writ OF mandamus:-
| In answer to said writ, answer and say that l
not the custodian Of the list OF qualified electors,
and have no knowledge or means OF knowledge
that the sgners OF said petition are such qualified
| electors.
And for further answer, say that am advised
! and so suggest that the act OF Assembly in such
cases made and provided 20 wit, the act OF July Q,
1889 is contrary to the Constitution OF thist safe
| and has no binding force whatever and hence re-
spectfuly submit that am not bound TO make such
certificate
Sworn to before r. ID. DoNEGAN,
| GEORGE DDlSS
q MIR. Sellers demurred TO the return, saying that
the return admitted that the sgners OF this petition
were qualified electors, but simply said that Mr.
DonegaD was not custodian OF the list.
After hearing counsel, Judge Ludlow said:-"l
NuA nFdnF m pPnf n
this court, It will not do for him to refuse obedience
on the GROUND that be does not know the record C
be true and thus answer the first proposition OF che
answer AS to the second, say il would be revolu
tionary in me ct this time TO decide that this act OF
Assembly is unconstitutional / award peremp
tory mandamus commanding the ProthonOtary 4
certify that upon the afidavits before him he be
lieves the petitioners to De qualified electors"