Commonwealth ex rel. Attorney-General v. Walter , 86 Pa. 15 ( 1877 )

Mr. Justice Paxson

delivered the opinion of the court,

This was a writ of quo warranto, issued upon a suggestion filed by the Attorney-General of the Commonwealth, against George Walter, requiring him to show by what authority he holds and exercises the office, franchises, rights and privileges, and enjoys the emoluments of the office of high sheriff of the county of Butler. The suggestion avei’s that the said Walter, while a candidate for said office, “ paid one John McLure money to use in carrying said election for him, for other purposes than for printing and travelling expenses, the dissemination of information to the public, or for political meetings, demonstrations and conventions, or for any necessary and proper expenses expressly authorized by law, but for corrupt and illegal purposes in procuring Ms election.” The suggestion then avers specific acts of corruption, and proceeds to charge that “ the said George Walter, having taken the oath of office required by the Constitution of the state of Pennsylvania after he had been declared elected to the said office of sheriff, did then 'and there commit and was guilty of wilful and corrupt perjury, having committed and been guilty of the acts and offences first above alleged and charged, which in said oath, taken as aforesaid, he denied; whereby the said George Walter has become and is disqualified from holding the said office of sheriff of the county of Butler, and since the first Monday of January, in the year of our Lord one thousand eight hundred and seventy-six, he has usurped and does usurp on the Commonwealth therein, to the great damage and prejudice of the constitution and laws thereof.” An amended suggestion, and amended specifications were filed by leave of court, a reference to the details of which is unnecessary under the view we take of the case. Nor need we now allude to any of the subsequent proceedings in the cause until we come to the demurrer filed by the defendant on the first day of October 1877. Under the well-settled rules of law this demurrer was an admission of all the facts sufficiently pleaded. The demurrer was general. An attempt was made to show that it was special by a certificate of the learned judge of the court below, that it was only taken to a single point. The certificate was no part of the record, although filed in the cause, and it may well be questioned whether the unofficial declaration of the judge can be received to contradict his own record. It is, however, wholly immaterial, as we are unable to perceive any- difference between a general and a special demurrer as to the admission of the facts. Both alike admit the facts well pleaded. We are, therefore, brought to a consideration of the sufficiency of the suggestion.

The law of the case will be found in section 9 of article 8 of the constitution, and thé Act of 18th of April 1874, Pamph. L. 64. The constitutional provision is as follows: “Any person who shall, while a candidate for office, be guilty of bribery, fraud, or wilful violation of any election law, shall be for ever disqualified from holding an office of trust or profit in this Commonwealth; and any person convicted of wilful violation of the election laws, shall, in addition to any penalties provided by law, be deprived of the right of suffrage absolutely for a term of ^our years.” The act of 1874, after defining, in the first section, what shall be considered legal election expenses, provides that “nothing contained in this act shall be so construed as to authorize the payment of money or other valuable thing for the vote or influence of any elector, either directly or indirectly, at [Drimary, township, general or special elections, nominating conventions, or for any corrupt purposes whatever incident to an election; and all judicial, state, county and municipal officers hereafter elected shall, before entering upon the duties of their respective offices, take and subscribe the oath prescribed by section first, of article seven of. the constitution of this Commonwealth.” The averment in the suggestion that the defendant paid money to John McLure other than for the legal expenses provided for in the Act of 1874, but “ for corrupt and illegal purposes in procuring his election,” sufficiently charges a violation of said act. The only expenses recognised by law are, 1st, printing and travelling expenses; 2d, for dissemination of information to the public; and 3d, for political meetings, demonstrations and conventions. Beyond these authorized expenditures a candidate for office may not go. The Act of 1874 declares that a candidate for either a nomination or an election shall not pay or contribute, either directly or indirectly, any money or valuable thing, or knowingly allow it to be done by others for him, either for the nomination, election or appointment, except for the three purposes above specified. We think, therefore, that the averment in the suggestion that money was paid, not for the legal objects designated, but for corrupt and illegal purposes in procuring his election, brought the defendant within the prohibition of the constitution and the penalties of the Atít of 1874. It follows that the court below erred in sustaining the demurrer.

It remains to consider whether wm ought to enter final judgment. If the defendant had demurred promptly there would have been much force in the suggestion pressed upon us at the argument that we should give judgment of respondeat ouster. But the Commonwealth has been greatly delayed. This case was -here a year ago upon another point. We then heard no word of any defect in the suggestion. The judgment was reversed November 24th 1876, and a procedendo ordered. It was not until October 1st 1877, the day upon which the case was ordered for trial, that the demurrer was put in. This delay was calculated to baffle the Commonwealth and seriously protract the proceedings. If we now allow the defendant to withdraw his demurrer it is not probable the case will be disposed of during his term of office. We cannot permit him to practically defeat this inquiry in this manner. He has had an ample opportunity of having his case passed upon by a jury if he desired it. Having, after great delay, interposed a demurrer, he must be held to all its legal consequences. The Commonwealth is entitled to final judgment.

What judgment is it our duty to give ? The section of the constitution above cited provides, as we have seen, that any person who shall, while a candidate for office, be guilty of a wilful violation of any election law, “shall be for ever disqualified from holding an office of trust or profit in this Commonwealth.” The entry of judgment for the Commonwealth upon the demurrer is conclusive upon the defendant that he has wilfully violated the election law of 18th of April 1874. It follows that the disqualification of the constitution attaches, and that he is “ for ever disqualified from holding an office of trust or profit in this Commonwealth.” He, therefore, fills an office lie is disqualified from holding by the very terms of the constitution, and he must be ousted therefrom. This may seem severe, but it is just. The constitutional provision and the Act of 1874 were intended to preserve the purity of the ballot, and must'be sternly enforced.

The judgment is reversed, and judgment is now entered here for the Commonwealth upon the demurrer; and it is further ordered and adjudged by the court that the defendant, George Walter, be, and he hereby is, ousted from the office of high sheriff of Butler county, and from the franchises, rights, privileges and emoluments thereof.

Subsequently, a motion was made for a re-argument, which was refused; the following opinion being delivered on the 10th day of January 1878:

Per Curiam.

— A rule for a re-argument of this case would do the defendant no good. We are of the same opinion as we were when judgment of ouster was given. The real purpose in this application is to open the judgment and obtain an order of this court remanding the record to the Court of Common Pleas of Butler county for a trial by jury. This, however, it would be improper to do. Such a practice would lead to great delay, and would encourage men in desperate or doubtful cases to appear to stand aloof from their counsel, plead ignorance of law, take the chance of a decision in their favor in this court, and failing in that, to have the record remitted for a trial of the facts. If, as the defendant swears, the demurrer was against his judgment and protest, he ought to have controlled his counsel, in a matter so important to his interests. Not doing this he certainly ought to have applied to this court to permit him to take back the record for a trial of the facts, before arguing his case upon the demurrer and taking his chance of this decision in his favor. If counsel make a fatal mistake, the remedy of the client is an appeal to the discretion and sense of justice of the court for relief, and not to persist in the error by argument.

The decision in this case is a warning of vast importance to the electors and people of this state, and we feel that it should be sustained by us, instead of impairing its force, by an apparent retrograde movement on our part.

Motion for a re-argument refused, and record ordered to be remitted to the court below.