I respectfully dissent. In the opinion of the court it is stated: "Any possible question as to whether the information given by the voters to the three notaries and by the latter repeated to the petitioner is `secondhand' and is therefore insufficient under the rule laid down in Kulike v. Fern at page 283, quoted above, may be passed over in favor of the petitioner." From this statement it may be assumed that the judgment dismissing the petition is based largely on the ground that the case made by the petitioner in his pleading has been entirely disproven by the ex parte affidavits of certain voters who declare that they did not vote for the petitioner but for the respondent. The effect of this is to finally decide the case onex parte affidavits. This seems to me a radical departure from the ordinary and approved procedure by which judicial controversies are tried and the rights of litigants ultimately determined. Speaking on the subject of affidavits as evidence the supreme court of Pennsylvania in Pittsburg's Appeal, 79 Pa. at page 323, said: "Ex parte affidavits are at best but a very weak kind of evidence and generally form but the ground of some preliminary or interlocutory action but are never, unless it be especially so provided by Act of Assembly or rule of court, the foundation for final judgment or decree." In his petition Allen tendered an issue of fact. If the respondent had wished to deny this issue of fact he should have done so by answer. Upon issue being thus joined each party should have been given the right to offer such evidence as the court deemed competent. This course would certainly be followed in any other civil suit and there is no apparent *Page 121 reason why it should not have been adhered to in the present case. In fact the record discloses a strong reason why the court should have heard this case in the customary way. Ten of the affiants, upon whose affidavits the court dismisses the petition, are among those who according to the certificates of the notaries had previously made oath that they voted for the petitioner and not for the respondent. The inquiry naturally arises, when were they telling the truth? Is it safe to deny the petitioner his day in court upon the assumption that these affiants told the truth in their last affidavits and a falsehood in their statements made under oath to the notaries? According to the petition if they told the truth in the oath they took before the notaries the election returns were erroneous and the petitioner was elected. Under these circumstances I feel that it was the duty of the court to go to the most reliable source of information, namely, the ballot boxes, in order to ascertain the facts. Public confidence in our institutions, indeed their very permanence, depends on the degree of honesty and accuracy with which elections are conducted. It is through the elective franchise that the will of the people is expressed and if the fraud or errors of election officers defeat their will popular government to that extent is a failure. Whenever a prima facie showing of such dereliction of duty is made to the court, as I believe was done in this case, I can conceive of no higher obligation that it is under to the community than to carefully inquire into the facts and declare its judgment. *Page 122