Moock v. Conrad , 155 Pa. 586 ( 1893 )

Opinion by

Mr. Justice Williams,

The appeal in this case is from the refusal by the court below to quash the petition of Henry Acker and fifty-seven other citizens and electors of the twentieth ward of the city of Philadelphia, contesting the election of George W. Conrad, Charles K. Smith, A. Atwood Grace and M. M. Caverow to the common council from said ward. The petition was presented in court on the fifteenth day of March last, was adjudged sufficient in form, ordered to be filed, and the respondents directed to answer. On the fourth day of April the respondents, instead of answering, applied for and obtained a rule to show cause why the petition should not be quashed. This rule was heard and on the twenty-fifth day of April it was discharged. This appeal was then taken. The appellees have moved to quash the appeal on the ground that an appeal does not lie from the order discharging the rule. The appellants have also asked that the record be returned to the court below for the purpose of making inquiry into an alleged discrepancy between the verification or certificate on the original petition filed, and the copies served. The last motion, after an inspection of the papers, is refused.

The motion to quash the appeal seems to us to be well founded. Our attention has been drawn to no provision of the election laws, or, of the several statutes relating to errors and appeals, giving a right to appeal from an order refusing to quash a petition in a contested election case. This proceeding is purely statutory and our jurisdiction over it, except for errors apparent on the record that may be reached on a common law writ of certiorari, depends on the statutes creating and regulating it. If we had jurisdiction by way of appeal as fully as in cases proceeding after the order of the common law it is by no means certain that this appeal could be sustained. The quashing or refusing to quash a writ or other process by which a defendant is simply brought into court to answer, rests in the sound discretion of the court out of which the process issues, and the action of the court upon such a motion, being the exercise of a judicial discretion, is not ordinarily reviewable: Renninger v. Thompson, 6 S. & R. 1; Breden v. Gilliland et al., 67 Pa. 34. In many similar motions the same rule has been held, as in a motion to set aside a rule of reference, Erie Bank v. Brady, 8 Watts, 530; to strike off an appeal, Gardner v. Lefevre, 1 P. & W. 73; to stay or to refuse to staj^ proceedings on.a writ, Roop v. Meek, 6 S. & R. 542. So error will not lie to the refusal of a new trial, Howser v. The Commonwealth, 51 Pa. 332; nor to an order quashing a foreign attachment, Brown v. Ridgway, 10 Pa. 42; nor to an order refusing to quash, Lindsley v. Malone, 23 Pa. 24. Among the latest cases on this subject is Holland v. White, 120 Pa. 228, in which the refusal to quash a writ was held not to be reviewable on error. The petition and the order to answer, simply brought the respondents into court where they may be fully heard. There is no judgment or final order in the case, and the investigation is but just begun.

Assuming that the appeal in this case may have been intended. to operate only as a common law writ of certiorari, and looking into the record in search of error wo find only a petition, an order to answer, and a motion to quash, which has been refused ; and it is very clear from the authorities cited that such a refusal would not ordinarily be inquired into by certiorari in a common law proceeding. We must therefore hold that no appeal lies from the order complained of under the laws which provide for the contest, and that the record discloses no error upon its face. The appropriate order under the circumstances is to grant the motion of the appellees and quash the appeal.

But we have a decided opinion upon the question which the learned counsel for the respondents seeks to raise. It is an important one and ought to be set at rest. We arc disposed to consider it as though it was properly here. An election by ballot is the method the people have provided for the selection, by themselves, of their own officers. The result of the ballot is made up and certified by the election officers. A contested election is the proceeding devised by the people and established by law for the exposure and correction of either fraud or mistake on the part of the election officers, in making up and certifying the results of an election. The laws regulating the proceedings should be liberally construed and administered, in aid of the right of suffrage, and the purity of popular elections. Whore any considerable number of the electors in a given district believe that the true result of the ballots cast has not been declared and certified by the election officers, they may have the correctness of the returns investigated, the votes examined and recounted, and the actual result of the election determined by the courts, by means of what is known as a contested election. The first step to be taken is for the electors to prepare and present to the court, if in session, or to the president judge in vacation, their petition setting forth their belief that the election as returned is undue and illegal, and in what respects the returns are incorrect, and asking the court to inquire into the truth of the facts alleged by them. The eourt or judge looks into the petition to see that the necessary formal averments are contained in it, adjudges it sufficient, directs that it be filed, and that the persons whose elections are disputed or denied have notice to appear and answer on a day to be named in the order. The act of 1871 declares that the parties to the contest shall be “ the petitioners complaining of the election and the person returned as elected ” by the officers whose return is contested. The object of the contest is to test the correctness of the returns. On the trial the court may hear the testimony of witnesses, require the production of the ballot boxes, open them, make a recount of the votes, and determine what the actual result of the election was. It may give this result final form by a decree declaring the vote received by the several candidates and naming the persons elected. It is very clear therefore that a contested election is not a matter of private litigation between rival candidates for office, but an official inquiry made at the instance and on behalf of the electors for the purpose of ascertaining whether the returns made by the election officers correctly represent the votes cast. It is true, ordinarily, that a single candidate is presented by each party for each office, and that the returns will show the selection of one and the defeat of his competitor ; but it sometimes happens that two or more candidates for the legislature, for councils, for school directors, or other local or municipal office are to be chosen from the same district. In that case each party puts forward its candidates who are voted for upon the same ballot or ticket, and who are, or may be elected or defeated together. When this happens, and the returns show the election of one set of the candidates; and the contestants alleged fraud or mistake calculated to affect the entire ticket, and to destroy the returns as to each one of the set returned as elected, we can see no reason for requiring the contestants to file as many copies of their petition as there are persons upon the ticket returned elected.

The object of the contest is to investigate the correctness of the returns. The purpose of the petition is to set the machinery of investigation in motion. So far as the contestants may know, the several persons, elected together on the legislative or councilmanic ticket, stand in the same position. On the surface of things they are each to be affected in the same manner by the alleged mistakes or frauds. If a corrupt election board has by improper means increased the votes returned, by one hundred or five hundred more than were actually cast for a given set of candidates, and so certified to their election in the returns that are the subject of the contest, it is reasonable to assume that when this fraudulent addition has been corrected all the memhers of the set returned as elected will suffer alike in the loss of the fraudulent vote. If there are reasons known to them or either of them why this may not be so, the respondents whexi they come to answer may set out these reasons and so sever in their answers and ask the court to allow them to sever in their trials. The court has ample power to make such order as may be needed for this purpose, and will see that each of the respondents has such opportunity to set up, or insist upon, whatever is peculiar to himself as shall seem necessary for his protection.

On this subject the court below reached a correct conclusion, and properly denied the motion to quash the petition of the contestants. If the order was properly before us on this appeal we should affirm it. We do not think it is, and for that reason we quash the appeal.