35 Pa. Super. 256 | Pa. Super. Ct. | 1908
Opinion by
1. It was decided in Erdman v. Barrett, 89 Pa. 320, that the Act of May 19, 1874, P. L. 208, designating the several classes of contested elections in this commonwealth, and providing for the trial thereof, applies to the contest of an election in which a tie vote is returned. “The contest,” said the court, “is to be begun and carried on in the same manner and is to be followed by the same judgment as when one candidate is apparently in the majority and the other in the minority.” Consequently, the petition must set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal — which requirement would not be satisfied by a mere averment that a tie vote was returned — and notice of the filing of the petition with a copy thereof must be served on the opposing candidate because, as was '.held in the case above cited, he is the person whose right of office is contested. “The contest is between the candidates voted for; they only can claim the right of office under the election to be investigated.” The object of the petitioners in instituting the proceeding is not merely to break the tie so that the office may be filled, but to establish the right of a particular candidate to the office to which he claims to have been elected, and the petition under consideration was framed with that end in view. If, after a judicial investigation of the election in the mode prescribed in the statute it is determined that the respondent received a majority of the votes legally cast, and he is given a certificate of election,
2. The provisions of the ninth section of the act of 1874 relative to costs were (a) if the court should decide the complaint to be without probable cause the petitioners were jointly and severally liable for all the costs; (b) in contested elections of presidential electors and state officers whose jurisdiction extends over the state if the court should not decide the complaint to be without probable cause the commonwealth was fiable for all costs; (c) in contested elections of president and additional law judges, of senators and representatives in the legislature and of county, borough, township and municipal officers, if the court should not decide the complaint to be without probable cause “the proper district, county, city, township, borough, ward, school district or municipality” was liable for all costs. But where — taking this as a single illustration of the operation of the law — a judicial district or a senatorial district comprised two or more counties, the provision that the costs should be paid by the “proper district” was plainly inadequate, first, because it left it uncertain who were meant by the authorities of the proper district; secondly, if the officers of the counties comprising the district were meant, it provided no mode of determining the proportion each county should pay. This, we may safely infer, was the occasion of the enactment of the Supplement of May 8, 1876, P. L. 148, which authorized the court to “apportion all the costs among the proper districts, counties, cities .... of the whole district in which contest is had in such way as said court or judge shall think just, and to compel by order, the payment of such amounts so apportioned to each by the properly constituted authorities of each,” etc. The language which precedes the foregoing is somewhat involved and tends to obscure the meaning, but reading the act as a whole in the fight of the act which it supplemented, and with regard to the mischief to be remedied, we are led to the conclusion that it cannot be regarded as an independent law upon the subject of liability for costs as
3. A statute amendatory of another, declaring that the former shall read in a particular way, must, in general, be held to repeal all provisions not retained in the altered form: Reid v. Smoulter, 128 Pa. 324. Applying that rule here we must look to the Act of April 28, 1899, P. L. 118, for the law governing the question raised by this appeal. By comparing it with the ninth section of the act of 1874 which it supplanted it will be seen that the only retained provisions which make liability for costs depend upon the question of probable cause for the complaint are those which relate to contested elections of presidential electors, of state officers whose jurisdiction extends over the state, and of senators and members of the house of representatives. As to all other contests to which any reference is made, either in the act of 1874 or in the act of 1899, the statutory provision now reads as follows: “In contested elections of president or additional law judges, and of county, borough, township, municipal officers, or school directors or school controllers, if the contestant or contestants fail to establish his or their right to the office to which he or they claimed to have been elected, the petitioners and each and every of them shall be jointly and. severally liable for all the
The order is affirmed.