214 Pa. 63 | Pa. | 1906
Opinion by
The learned court below on a petition in proper form declined to appoint overseers of election in the second division of the seventh ward of the city of Philadelphia on the ground that “ the act of 1893 repealed the act of 1874 in so far as the act of 1874 made it mandatory upon the court to appoint overseers.” The court in its opinion refusing to make the appointment said: “We think the court is not bound to appoint overseers upon the mere petition of citizens stating that in their opinion they believe that fraud will be perpetrated in the division without anything more. We realize, however, that under the constitution the power exists in the court — the right exists in the court — to appoint overseers whenever in their
The sixteenth section of article YIII of the constitution of 1874 authorizes the court of common pleas to appoint overseers of election “ to supervise the proceedings of election officers and to make report to the court as may be required.” The appointment is to be made upon the petition of five voters of the election district “ setting forth that such appointment is a reasonable precaution to secure the purity and fairness of élections.” The overseers are to be two in number, of different political parties, residents of the district, and are authorized when the election board differ in opinion and the overseers agree on the question in dispute to “ decide the question of difference.”
The fourth section of tlio Act of January 30, 1874, P. L. 33, 1 Purd. 746, provides that upon the presentation of a “ petition of five or more citizens of any election district, setting forth that the appointment of overseers is a reasonable precaution to secure the purity and fairness of the election in said district, it shall be the duty of the court of common pleas of the proper county .... to appoint two judicious, sober and in telligent citizens of said district, belonging to different political parties, overseers of election to supervise the proceedings of election officers thereof, and to make report of the same as they may be required by such court.” The duties and powers
This section of the act of 1874 was passed, as it clearly appears, to carry into effect section 16 of article VIII of the constitution. The court below and the learned counsel appearing for it here concede that the provisions of this section of the act are mandatory and not discretionary, and that under the act the court, on presentation of a proper petition, is required to. appoint overseers.
The court below held, however, that part of the act of 1874 providing for the appointment of overseers was repealed by the Act of June 10, 1893, P. L. 419, 1 Purd. 747, for the reason that it was inconsistent with that part of the latter act providing for the appointment of watchers which, in the language of the court, “is evidently intended to take the place of the overseers provided for in the act of 1874.” “The watchers have practically the same duties and the same rights (as the overseers),” says the court, “ the main differences are that they must remain outside of the guard rail and are not to be paid from the public purse.” It was this view of the duties and the rights of the overseers and watchers under the respective acts of assembly that led the learned court to an erroneous conclusion.
The act of 1893 was enacted, as its title discloses, “ to regulate the nomination and election of public officers, requiring certain expenses incident thereto to be paid by the several counties, and punishing certain offenses in regard to such elections,” It is known by the name of its author and is called
Now recurring to overseers of election, we see they are appointed by the court of common pleas in pursuance of the act of 1874, passed to carry into effect a constitutional provision
It is clear from the above comparison of the rights, duties and powers of overseers with the rights of watchers appointed respectively under the acts of 1874 and 1893, that the rights, powers and duties of the two positions are not the same and that it was not the intention that watchers should take the place of, or supersede, overseers in supervising the proceedings of election officers. It is argued, however, in the opinion of the court below, that the part of the act of 1874 authorizing the appointment of overseers is repealed by the act of 1893, because it provides that “by explicit language no one except those mentioned in the act of 1893, are allowed in the room, none but election officers inside the guard rail, and no one is allowed to communicate with an election officer in any way during the counting of the vote.” But this argument is met by the argument of the appellants that the right of overseers to be present in the inclosed space provided exclusively for the officers of election is specifically recognized by section twenty-one of the act of 1893, which provides, inter alia, as follows : “ Besides the election officers and such supervisors as are authorized by the laws of the United States or overseers appointed by the courts of this commonwealth, no more than four voters in excess of the number of voting shelves or compartments provided, shall be allowed in said inclosed space at one time.” The sections of the act bearing directly on this question are apparently inconsistent, but, keeping in view the purpose of both acts and the constitutional mandate, they may be reconciled. It will not be presumed that the legislature in passing the act of 1893, intended to offend against the constitution; on the contrary, we must, if possible, construe the act so that
The illustration of the inconvenience of having two overseers in addition to the watchers present at the election, suggested by the learned counsel representing the court below on this appeal, may be misleading. If there were five political parties, there would Be five and not fifteen watchers in the voting room, and if there were eight parties there would be eight and not twenty-four watchers in the room. While each political party may appoint three watchers to be present at each election district, the act of 1893 provides that “ only one .... shall be allowed to remain in the room outside of the inclosed space .... and no party or policy shall be represented by more than one watcher in the same voting room at any time.” The learned counsel’s argument ab inconvenienti does not appeal to us with any force whatever on the question of legislative intent in the enactment of the act of 1893. That
The desire of the learned judge below, so frequently suggested in his opinion, to protect the city of Philadelphia from unnecessary expenditure of money is commendable, and his argument in favor of greater economy in election expenses will receive the hearty approbation of the taxpayers of the city. But we must assume that the franiers of the constitution and the people, who by their votes adopted that instrument as the fundamental law of the commonwealth, well understood the expense which would be incurred for the services of two overseers in each election precinct of the state, and that the additional expense thus entailed was regarded as infinitesimally small in comparison with the object to be attained by the services of these officers which, in the language of the constitution, was “ to secure the purity and fairness of elections.” Economy in the expenditure of money cannot be considered when it may prevent or endanger the sanctity and the purity of the ballot box.
We are of opinion that the act of 1893 did not repeal that part of the act of 1874, providing for the appointment of overseers of elections, and that the court below was in error in declining to appoint overseers on the petition presented by the appellants. As the election has passed for which the appointment of overseers was requested, we need not, in reversing, award a procedendo.
The order of the court below refusing to appoint overseers of election in the second division of the seventh ward of the city of Philadelphia is reversed.