(Striking out specifications.) always been the effort of this court, and the following principles applicable to the case in hand may be deduced from decided cases: 1. That the powers conferred upon the court, in relation to contested elections, are to be exercised judicially; and in such cases, proceedings are to be regulated, as far as practicable, by the established rules of judicial procedure. 2. That the petition must set forth plainly and distinctly, facts which, if sustained by proof, would render it the duty of the court, to entirely vacate the election, or to declare that another person, and not the person returned, was elected to the office in question. Skerrett's Case, 2 Pars. 509 (ante 320); Carpenter's Case, Ibid. 537. 3. That the court will strike from the petition all irrelevant or general allegations, which cannot affect the merits of the case or the general result. Kneass's Case, 2 Pars. 553. 4. That a petition to set aside an election may be amended, and especially, where leave to amend is applied for, before any progress is made in the hearing of the case. We do not deem it necessary to examine or review the correctness of either of these propositions; they have been settled, after much and repeated consideration; they have been frequently applied, and have stood the test of experience; we have heard nothing, upon this argument, to induce us to reconsider either of them, and they must now be regarded as the settled law, so far as this court is concerned. The application of these principles to the rules under consideration, will enable us to decide them without difficulty. These rules are, on the part of the party holding the return, to show cause: 1. Why the specifications in the petition of the contestants, except the 1st, 2d and 43d, should not be stricken out: 2. Why the petition should not be quashed, for the insufficiency of the 1st, 2d and 43d specifications. The reasons in support of the motion to strike out, are, that the said specifications are not sufficient in law; that they are not specific; that (Striking out specifications.) they do not set out the names of the voters from whom illegal votes are said to have been received, nor how such votes are illegal. The specifications referred to are precisely alike, except as to the number of votes, and the election division and ward in which they are charged to have been illegally received; it is, therefore, unnecessary to refer to them separately. The petition alleges that the election return of Lewis C. Cassidy, as district-attorney, is false, fraudulent and untrue, in this, that Lewis C. Cassidy was unduly returned as having received for said office 34,475 votes, and William B. Mann 33,924 votes; whereas, the petitioners allege and charge that the said Lewis C. Cassidy received not more than 32,915 votes, and William B. Mann received at least 34,399 votes for said office, whereby the petitioners allege and charge, and believe that the said William B. Mann has received the highest number of votes for said office, to wit, at least 1484 votes more than the said Lewis C. Cassidy, is elected to the said office, and should have been so returned. This is a direct charge of a false and fraudulent election and return; it sets out the number of votes returned for each candidate, and states the number actually received by them respectively, claiming a difference in favor of William B. Mann of 1484 votes, which number would greatly exceed the majority of 551 votes returned as received by Lewis C. Cassidy. If the facts thus stated be proved, it is manifest that the result of the election, as returned, will be changed, and Mr. Mann, as the person receiving the greater number of votes, will be entitled to the office. The petition then contains certain specifications, each of which, from the 3d to the 46th, indicates a particular ward and the election division in such ward, in which votes were illegally received for Lewis C. Cassidy, from persons not qualified to vote, and also states the number of votes so received. The whole number of illegal votes stated in the several specifications greatly exceeds the majority returned for (Striking out specifications.) Mr. Cassidy. The petition thus distinctly charges fraud in the election and return; it points out the polls at which the fraud was committed, the manner in which it was effected, and the number of illegal votes fraudulently received. This would seem to be all that the law requires; it is a precise statement of facts which, if sustained by proof, would change the result of the election. But it is contended, that greater precision should be required; that the petitioners should be obliged to set out their full knowledge; that they should give the name of every illegal voter, and the specific reason why his vote was illegal. For such a degree of strictness no analogy in pleading has been shown. In a quo warranto, to which, it is said, the supreme court, in Sheetz's Case, compared this proceeding, no such extreme precision is necessary; in election cases before committees of parliament, in England, special statutes were required to direct the character of the information to be given by the contesting parties. We remember no instance in pleading, in which it is necessary to set out, not only the claim or injury alleged, but the means and manner, and character of the proofs to be adduced in support of the charge; if such strictness were required, the slightest mistake would be fatal. The specifications in this case come up to the requirements of the law, as indicated in former decisions. In Kneass's Case, 2 Pars. 553, the sixth specification which, as amended, was sustained, is identical with that now under consideration; a list of names was there appended, which the court subsequently pronounced to be unnecessary, regarding it only as proof. If that case was properly decided, it rules the point now under consideration.* We are aware of the extreme difficulty of exercising this jurisdiction; party feeling affects the very atmosphere which surrounds us; no one looks calmly on, and there is danger in being led into extremes; in medio tutissimus. * And see Weaver v. Given, 1 Brewst. 140; Batturs v. Megary, Ibid. 162. (Striking out specifications.) Let it be known that an election fraud must not only be discovered, but that every individual engaged in it must be ascertained and named, before a step can be taken to establish it, and the chance for a fair election will be more and more remote. We cannot throw this shield around fraud. Believing that this petition contains those statements of fact which the law directs this court to investigate, and which every decided case asserts to be matter proper for investigation, our duty is to proceed with it. We do not relax our rules, but consider that this case is clearly governed by the propositions derived from adjudged cases. The specifications from the 46th to the end of the petition are similar to each other, alleging frauds of a similar character, in different divisions of the several wards named therein. The first fraud charged is alleged to have been committed by a majority of the voters, at the election for inspectors, in the spring of the present year, in choosing two inspectors of the same political views. Doubting very much whether such a choice of inspectors constitutes a fraud, it is sufficient to say, that no effort was made, in proper time, to set aside the election for such inspectors, and we certainly cannot examine its validity in a collateral proceeding; this would be contrary to all legal principle, and be inconsistent with the meaning of the law which regulates this subject, and which requires a direct proceeding to contest an election,* always presuming that to have been fair which has not been legally questioned; we can, therefore, receive no evidence on this point, and it must be stricken from the petition. The next charge is, that the said inspectors and judge did fraudulently receive 200 votes, which were counted for Lewis C. Cassidy, from persons not qualified to vote. This is the same charge as made in the 7th specification with the addition of the word "fraudulently;" it is not perceived *This law has provided no direct proceeding for contesting an election of judges and inspectors. Scranton Borough Election, 1 Luzerne Legal Obs. 12. (Striking out specifications.) that the charge of fraud, thus made, will render the receipt of illegal votes any more efficient to change the result of the election. The first charge made in the petition is, that the election and return are false and fraudulent, and the evidence showing such votes to have been fraudulently received, may be given under the first specification relating to the same district, each of such specifications being understood to point to a special instance of the general fraud charged. The next class of charges in this specification alleges, that the said election officers fraudulently refused to perform those acts which the law requires them to perform in conducting an election; but it is not therein alleged that the effect of this fraudulent refusal and neglect was, to change the result of the election for district-attorney. It has been settled, that the allegation of a fraud perpetrated by the officers of an election, is not sufficient to authorize the court to set aside an election, unless it be also stated that, by such fraud, the true declaration of the will of the people has been prevented. If this were not required, dishonest officers would have it in their power, by fraudulently neglecting the required formalities, to set aside an honest election. The election officers are next charged with having fraudulently received the votes of non-residents, &c. This alle-. gation is not sufficiently definite, as it neither states that such votes were received for district-attorney, nor the number of such votes, so that the effect upon the result can be ascertained. The same remark applies to the allegations of having fraudulently received the votes of persons who personated others, some of whom were dead, and of having permitted the same persons to vote several times; the number of such votes is not stated, nor their effect upon the result of the election. The following charge of omission to file the tally-papers within the time required by law, can have no effect upon the number of votes, and is not material. |