dert and Vice President, of Senators and Representatives in the Legislature, and of all public officers, whether State, municipal or local, shall be by the courts of law regularly established, or by one or more of the law judges thereof. The Legislature shall by general law designate the courts and judges by whom the several classes of election contests shall be tried, and regulate the manner of trial and all matters incident thereto; but no such law assigning jurisdiction or regulating its exercise shall take effect as to any contest arising out of an election held before its passage.

Mr. SIMPSON. I suggest the propriety of inserting the word "judicial" after the word "State," in the third line, so as to avoid any question on the subject. I do not think the word "State" will cover the case of a contested judicial election.

The CHAIRMAN. Does the delegate move an amendment?

Mr. SIMPSON. I do. I move to insert the word "judicial" after the word "State," in the third line.

Mr. BUCKALEW. I do not think that amendment is necessary, though it will do no particular harm to insert it. The section now refers to the election of "all public officers, whether State, municipal or local."

Mr. DARLINGTON. 1 do not know whether the committee are prepared to vote on this section or not. It presents a radical change in the Constitution, and I think is worthy at least of a moment's thought.

The CHAIRMAN. The question is now on the amendment of the delegate from Philadelphia (Mr. Simpson) to insert the word "judicial" after the word "State."

I

Mr. DARLINGTON. Well, sir, I object to that as well as to the whole of the section. We propose to invest the courts of the Commonwealth with the power to decide on all cases of contested elections, whether of Presidential electors, members of the Legislature of either House, judges, or municipal officers of every kind. do not know whether there is at present any mode provided for the contested election of electors of President and Vice President of the United States, but I believe there is by act of Assembly. But are we prepared to recommend to the people of the Commonwealth to vest in the courts the authority of deciding all questions of contested elections of members of the Legislature or the settlement of all contested elections of the judges of the courts them 5-Vol. V.

selves? We have lived under a Constitution by which all questions as to the qualifications and election of members of the Legislature are left to be decided by the bodies themselves respectively ever since the foundation of the government. Has any practical inconvenience ever arisen from it?

Mr. D. N. WHITE. I would remind the member from Chester that already in the article on the Legislature we have agreed that contested elections shall be decided by the courts of common pleas of the district in which the members live.

Mr. DARLINGTON. Then it has no business here. I do not understand the provision to which the gentleman refers to be quite so comprehensive as he does. It certainly does not mean all that this section means at all events. If it is the settled purpose of this body to adhere to the idea of taking from the Legislature the power of deciding upon the elections of its own members, if that is settled by the committee, of course I do not wish to argue it again; but I do object

Mr. D. N. WHITE. The section does not include qualifications, but only the election.

Mr. DARLINGTON. Then, who is to decide on the qualifications of the member but the Houses themselves? I apprehend that the election and qualification necessarily go together; you cannot separate them. You do not want to have two contests, one before the Legislature as to the qualifications of the members and another before the courts as to the election of the members. When would your contests end if this were the case? Where is the necessity of subdividing the power? Why not at once leave it where it has always been exercised with, I submit, entire satisfaction to the community? I beg gentlemen to remember that no complaint from any quarter has been suggested in this body as ever having arisen from the exercise of this power by the Houses of Assembly themselves.

What are we afraid of then? Are wo not willing to entrust to them the power to decide as to the elections and qualifications of their members? I am aware of the recent case of M'Clure vs. Gray, and I know that that was decided by a com mittee of one of the Houses. But where has there ever been an objection raised to the exercise of the power by the Houses themselves? I think there are great objections to the exercise of it by a committee, for that is a body chosen by chance, and it

is a power which the Legislature ought never to have surrendered. They should have retained it in their own hands; and a majority of each body, all acting under their responsibility in each particular case, should have the power and should decide that question.

But, sir, you propose to go further. You propose to invest the courts of law (what courts of law?) with the decision of the election of electors of President and Vice President. This article does not define what court of law. Will you leave it to the Legislature to say what court of law, whether it shall be the court of probate, if we should establish such a court, the court of common pleas, the orphans' court, a district court, or the Supreme Court? To what court do you propose to give authority to decide upon the election of an officer who is elected by all the citizens of this Commonwealth? Certainly not the court of any particular county. You would scarcely say that the court of common pleas of our county-and I speak of that because it is as respectable as any other-should have the right to decide a question of this magnitude, covering the election of a State officer, so to speak, an officer elected by all the people of the State. It could not be confided to a local court; nor should the question of the election or non-election or the qualification of a judge of the Supreme Court of the State be submitted to any other body than the Supreme Court itself; and yet you are thus making the judges of that court the judges of their own election and qualifications, by this provision. If two or more judges should be elected at the same time, and there should be only two or three judges upon the bench to decide, the moment a decision in the case of one judge is made he becomes a judge for the others; and thus all who claimed to be elected, if they happened to be of the right political complexion, could readily be voted in, and thus you might readily anticipate the introduction of politics upon the bench in every case of an election. Now, is it wise in any case to cast upon the judiciary the decision of these questions, which are, to a certain extent, political.

Again. "The Legislature shall, by general law, designate the court and judge by whom the several classes of election contests shall be tried, and regulate the manner of trial."

Mr. DARLINGTON. Very well.

Mr. BUCKALEW. There is a mis-print there. The words ought to be plural. "courts and judges.”

Mr. DARLINGTON. "The Legislature shall, by general law, designate the courts and judges." That I understand to be the language.

Mr. BUCKALEW. Yes, sir.

Mr. DARLINGTON. "The courts and judges by whom the several classes of election contests shall be tried." That means that if there is a court organized in any place with a single judge, he is to decide; if there are several courts, as there probably would be in the cities, with different judges, and more than one judge to a court, they may decide these questions of large magnitude.

The CHAIRMAN. The delegate has spoken his ten minutes.

Mr. BOYD. I move that his time be extended.

Mr. DARLINGTON. No; I do not want it to be extended. I only want to say this

["Question!" "Question!"]

Mr. D. N. WHITE. Mr. ChairmanMr. DARLINGTON. I am not quite

through.

The CHAIRMAN. The Chair informed the gentleman from Chester that his ten minutes were up.

That will do.

Mr. DARLINGTON. Mr. D. N. WHITE. Mr. Chairman: I think this sectien is entirely unnecessary and calculated to do harm. We have already, in the section on the Legislature, decided that contested elections for members of the two Houses shall be decided by the court of common pleas of the county where the member lives. We have already decided that contested elections for Governor shall be decided by the Legislature, and also of Lieutenant Governor. But here we have a section which transfers the whole to the courts-Governor and everything else. I think that we do not need this section; that it would work evil to throw into the courts contested elections of Governor, Lieutenant Governor, members of the House of Representatives and the Senate, and all the heads of departments. I hope the simple statement of the case that it is in contradiction to what we have already fixed in the Constitution, will be sufficient to insure its being voted down.

Mr. SIMPSON. Mr. Chairman: This sec

cept judicial. Now, it may be said that

the word "State" covers the word "judicial," but I think it does not; and these officers ought to be provided for as well as all others, so that there will be no misconception and no doubt.

The CHAIRMAN. The quest on is on the amendment of the gentleman from Philadelphia, to insert the word "judicial."

The amendment was agreed to.

on the section as amended.

Mr. BOWMAN. I simply rise to call the attention of the gentleman from Columbia to one point. It is provided in this section that "the Legislature shall, by general law, designate the courts and judges by whom the several classes of election contests shall be tried, and regulate the manner of trial."

Now, is this duty which we impose on the courts a judicial duty? Will it not be a question of fact which they would be called upon to decide on the evidence growing out of the case?

Mr. BUCKALEW. That would be judicial. Mr. BOWMAN. What then is meant by what you have already passed in the twentieth section of the article on the judiciary, "that no duty shall be imposed by law upon the Supreme Court or any of the judges thereof, except such as are judi

cial?"

Mr. BUCKALEW. This is judicial. Mr. BOWMAN. Then allow me to ask the gentleman what duties are imposed upon the courts that are not judicial?

Mr. BUCKALEW. Not any. There may be certain political appointments now vested in them under special laws.

Mr. BOWMAN. Then why put it in your Constitution that no duties shall be imposed on a certain court of the State that are not judicial, if all the duties that the court is called upon to perform are judicial duties? If they are of a judicial character why put it in your Constitution that certain duties that are not judicial shall not be cast upon them. This proposes——

Mr. BUCKALEW. The gentleman and I disagree altogether about what is a judicial duty. The decision of a contested election is a judicial duty.

Mr. BOWMAN. I ask the gentleman if the question is not to be decided upon the question of fact? Here is a contest arises. You have your proof before the court, have you not? You bring your witnesses before the court, and they are to decide upon the evidence in the case

President?

Mr. BUCKALEW. Yes.

Mr. BOWMAN, All judicial duties?
Mr. BUCKALEW. Certainly.

Mr. BOWMAN. Then, as I have gained this information, I am decidedly opposed to this section. [Laughter.] I do not want to impose upon the courts what I think are extra-judicial duties, if they are at all judicial, and I take it for granted they are after what I have heard. Since we have got the explanation of the gentleman from Columbia, we have been trying here to relieve the courts of a great deal of their business; we have gone on here increasing the judges of the Supreme Court; we have been cutting down the judicial districts of the State, and making single district of counties embracing thirty thousand inhabitants, for the purpose of relieving the courts of the press of business that has grown up in this Commonwealth; and yet here it is proposed by this section to increase the business of the courts, to constitute all the courts boards of return judges to decide the contests that may grow out of the elections of the Commonwealth, not even confined to the legitimate elections of the State, but extended to every contest that may come up for decision under the election of Presidential and Vice Presidential electors. I am opposed to it.

Mr. WHERRY. I desire to call the attention of the gentleman from Erie to the language of Chief Justice Marshall on this subject. He said:

"A legal election to an official position, (and notably to one of honor and profit,) gives a legal right or title to a valuable thing, the people as the grantor having the right to make the grant, and the person elected as the grantee having the right to accept. A certificate of election is evidence of the grant-a deed of transfer."

The CHAIRMAN. The question is on the section.

On the question of agreeing to the section, a division was called for, which resulted forty-four in the affirmative, and

Mr. LILLY. The reason why I have offered this resolution is, in the first place, that when teams are passing it is impossible to hear anything that is going on in the Hall, either anything said on the floor or that is read from the desk. In the next place, I have offered the resolution because I applied to the chairman of the Committee on House to do this, and ke said that that committee would not do any such thing without the direction of the Convention.

Mr. BOYD. I move that the matter be referred to the Committee on Accounts and Expenditures, for the purpose of ascertaining what it costs.

The motion to refer was rejected.
The resolution was adopted.

LEAVE OF ABSENCE.

The CHAIRMAN. The committee of the whole has again referred to it the article reported by the Committee on County, Township and Borough Officers. At the time of the last adjournment, the question was on the new section proposed by the delegate from Columbia (Mr. Buckalew.) That amendment will be read.

The CLERK read as follows:

SECTION. In elections of county commissioners and county auditors, each elector may cast all his votes for a smaller number of persons than the whole number to be chosen, and candidates highest in vote shall be declared elected. Three commissioners and three auditors shall be chosen in each county at the general election in 1875 and every third year thereafter, whose term shall commence on the first Monday of January next following their election; and the terms of commissioners and auditors heretofore elected prior to 1875 shall expire with that year. Casual vacancies in the offices of county commissioner and county auditor shall be

respective counties in which such vacancies shall occur, by the appointment of an elector of the proper county who shall have voted for the commissioner or auditor whose place is to be filled.

Mr. BUCKALEW. Mr. Chairman: When the committee rose on Friday last, I had moved this amendment and held the floor for the purpose of making some remarks upon it of an explanatory character. In the brief space of time which the rule allows, I will present as well as I can the conclusions to which the Committee on Suffrage, Election and Representation arrived, and which induced them to agree unanimously in authorizing me to move this amendment to the present article.

In the first place, this amendment is not of a party character. About one-half of the counties of the State are held by majorities of each of our great parties. Therefore, taking the whole State together, there will be no disturbance, or at least but a very slight disturbance in the aggregate weight of party power.

Not many days since one of the profoundest men of the present age died in an ancient city of France, the city of Avig

non.

he held the floor upon an amendment to In the House of Commons, in 1867, the reform bill of that year, similar to the one which is now pending before this committee of the whole; and he vindicated that amendment against party hostility and antagonism by words which I will read here. I refer to the late John Stuart

Mill. He said:

"I cannot indeed hold out as an inducement that the principle I contend for is fitted to be a weapon of attack or defence for any political party. It is neither democratic nor aristocratic-neither Tory, Whig or Radical-or let me rather say, it is all these at once; it is a principle of fair play to all parties and opinions without distinction; it helps no one party or section to bear down others, but is for the benefit of whoever is in danger of being borne down. It is therefore a principle in which all parties may concur, if they prefer permanent justice to a temporary victory; and I believe that what chiefly hinders them is, that as the principle has not yet found its way into the common-places of political controversy, many have never heard of it, and many others have heard just enough about it to misunderstand it."

In the report made on the second of March, 1869, to the United States Senate,