Commonwealth ex rel. McLaughlin v. Cluley

The opinion of the court was delivered, January 7th 1867, by

Strong, J.

A writ of quo warranto is not a writ of right. Even our Act of Assembly of June 14th 1836, recognises this. It enacts that such writ may be issued by the Supreme Court in all cases in which the writ of quo warranto at common law may have been issued, and in which the said court had, before the passage of the act, possessed the power of granting informations in the nature of such writ. The British statute of 9th Ann. ch. 20, was not, at first, adopted in this state. It was not reported in force by the judges ; but its provisions were incorporated into our revised code. Under the British statute it was always held to be within the discretion of the court whether to grant or withhold an information in the nature of a quo warranto, and the court acknowledged themselves bound to exercise a sound discretion upon consideration of the particular circumstances of each case. This was said by Lord Mansfield in Rex v. Wardroper, 4 Burr 1964, and the same rule was recognised in Rex v. Dawes, 4 Burr 2022, and in Rex v. Sargeant, 5 Term Rep. 467, and there are cases in which courts have refused leave to file an information at the suggestion of a private relator, even when a valid objection to the defendant’s title has been shown: Rex v. Parry, 6 Ad. & E. 810; 2 N. & P. 414. Nor has this court since the Act of 1836, adopted any other rule. In Commonwealth v. Jones, 12 Penn. St. Rep. 365, the British practice was recognised as the rule with us, and though it has since been decided that it is not indispensable a rule to show cause should be obtained before the writ can issue, no decision has been made that this court is obliged to entertain such writ, if in their opinion it was improvidently issued. The issue of the writ does not end the discretion of the court.

Before the Act of 1836, informations in the nature of quo warranto, at the instance of a private relator, wrnre always required to be with leave of the court, and leave was not granted except upon application of a competent relator. No one was held competent who had not a sufficient interest to warrant his interference, and our statute has made no change in this particular. Its second section gives to courts of Common Pleas concurrent jurisdiction with the Supreme Court in five classes of cases. The first three relate to municipal and other corporate offices, and the act provided that in any such case the writ might be issued upon the suggestion of the attorney-general or his deputy in the respective county, or of any person or persons desiring to prosecute the same. The other two classes relate to usurpations of corporate rights, or forfeitures of corporate privileges. As the act was reported by the commissioners to revise the civil code, it was drawn so as to provide that writs in such cases should be granted only upon the suggestion of the attorney-general, or his deputy. The legislature, however, altered the provision, and enacted that writs in these cases, as in the others, might be issued upon the suggestion of any person or persons desiring to prosecute the same. But the statute of 9th Anne allowed informations at the relation of any person desiring to sue or prosecute them, and under that statute the rule was that a private relator must have an interest. Our act, which substantially incorporates the provision of the British statute, has received the same construction. This court has construed the words “ any person or persons desiring to prosecute the same” to mean any person who has an interest to be affected. They do not give a private relator the writ in a case of public right, involving no individual grievance. This was ruled in Commonwealth v. The Allegheny Bridge Company, 8 Harris 185, in Murphy v. The Farmers’ Bank, Ibid. 415, and Commonwealth v. Railroad Company, Ibid. 518. And it is to be observed that the legislature has placed all the five classes of cases enumerated in the act on the same footing in this particular. If a private relator cannot sue out a writ to enforce a forfeiture -without having an interest, the statute gives him no greater right when he complains of usurpation of a county or township office. The right of a relator in each class of cases is defined by the same words.

The relator in the present case suggests that Samuel B. Cluley now usurps, intrudes into and unlawfully holds the office of high sheriff of Allegheny county; that at the general election on the 9th day of October 1866, an election was held for sheriff of said county, that at the election the said Cluley received nineteen thousand nine hundred and fifteen votes, and the relator received twelve thousand nine hundred and twenty-five votes for the said office ; that the vote was certified to the governor, and that Cluley was commissioned sheriff, and that he has since acted as such notwithstanding the fact that he was commissioned sheriff of said county on- the 28th of August 1863, and discharged thé duties of the office from that time until the first Monday of December 1863.

Now, on this showing, what interest has the relator in the question he attempts to raise ? What more than any inhabitant of Allegheny county, or of the Commonwealth ? He was a rival candidate at the election for the office, but he was defeated, with a majority against him of six thousand nine hundred and ninety. Doubtless, if his successful rival is incapable of holding the office on account of the constitutional provision “ that no person shall be twice chosen or appointed sheriff in any term of six years,” or for any other reason, and that incapacity entitles him, the relator, to the office, he has an interest. He certainly can have none if a judgment of ouster against Cluley would not give 'the sheriffalty to him. But surely it cannot be maintained that in any possible contingency the office can he given to him. The votes cast at an election for a person who is disqualified from holding an office are not nullities. They cannot be rejected by the inspectors, or thrown out of the count by the return judges. The-' disqualified person is a person still, and every vote thrown for him is formal. Even in England it has been held that votes for a disqualified person are not lost or thrown away so as to justify the presiding officers in returning as elected another candidate having a less number of votes, and if they do so á quo warranto information will be granted against the person so declared to be elected, on his accepting the office. See Cole on Quo Warranto Informations, 141-2 ; Regina v. Hiorns, 7 Ad. & E. 960 ; 3 Nev. & Perry 184; Rex v. Bridge, 1 M. & S. 76. Under institutions such as ours are, there is even greater reason for holding that a minority candidate is not entitled to the office if he who received the largest number of votes is disqualified. We are not informed that there has been any decision strictly judicial upon the subject, but in our legislative bodies the question has been determined. It was determined against a minority candidate in the legislature of Kentucky, in a case in which Mr. Clay made an elaborate report, and was sustained. In 1793 Albert Gallatin, elected a senator from this state, was declared by the Senate of the United States disqualified because he had not been a citizen of the United States nine years, and his election was declared void for that reason, but the seat was not given to his competitor. Nobody supposed the minority candidate was elected. There have been several other eases of contested elections in which the successful candidates were decided to have been disqualified, and denied their offices. John Bailey’s case is one of them. He was elected to Congress from Massachusetts, and refused his seat in 1824. But neither in his case, nor in any other with which w^e are acquainted, were the votes given to the successful candidate treated as nullities, so as to entitle one who had received a less number of votes to the office. There is a class of cases in England apparently, but not really, asserting otherwise. The earliest of them are referred to by Mr. Buller in his argument in Rex v. Monday, Cowper 530. They were followed by Rex v. Hawkins, 10 East 211, and Rex v. Parry, 14 Id. 549. In these cases it is said that if sufficient notice is given of a candidate’s disqualification, and notice that votes given for him will be thrown away, votes subsequently cast for him are lost, and another candidate may fe returned as elected if he has a majority of good votes after those so lost are deducted. There is more reason for this in England, where the vote is vivá voce, and the elective franchise belongs to but few, than here, where the vote is by ballot, and the franchise well nigh universal. In those cases the notice was brought home to almost every voter, and the number of electors was never greater than three hundred, and generally not more than two dozen. Besides, a man who votes for a person with knowledge that the person is incompetent to hold the office, and that his vote cannot therefore be effective, that it will be thrown away, may very properly be considered as intending to vote a blank, or throw away his vote.

But the present relator suggests no $uch case. He does not even aver that? if the votes given for Cluley were thrown out, he received a majority, though doubtless such was the truth. .He has therefore exhibited no such interest as entitled him to be heard.

On the argument we were told that in Rex v. Godwin, Douglas 387 (396), it was held that the rival candidate was the most proper relator. An examination of the case, however, shows this to be a mistake. The rival candidate was the relator, but he received a majority of the votes. Doubtless in England, when the information is against a bui’gess or alderman of a borough, a corporator is held a fit relator. He has an interest. Our case of Commonwealth v. Small, 2 Casey 31, cited in support of'the suggestion, instead of being any real support, is adverse to it. The relator was, it is true, a rival candidate, but his suggestion was not supported for that reason, bxxt because there had been a subsequent election at which he had been elected. The court put his right to intervene expressly on the ground of that subsequent election. Said Lowrie, J.: “ The relator shows sufficient evidence of title in himself to authorize him to institute this proceeding. He acquired it at a subsequent election, and if that is not contested on any other grounds than the supposed validity of the prior election, then, of course, he is entitled to the office.” The plain inference from this is, that had it not been for the second election, he would have been an incompetent relator.

It need only be said in regard to the Act of April 18th 1840, that the relator referred to in it is a person entitled to the office, if judgment be given against the party in possession.

After what has been said, it will be seen that we are of opinion J. Y. McLaughlin has no such interest as entitles him to be heard in a writ of quo warranto. The question which he seeks to raise is a public one exclusively, and it can be raised only at the instance of the attorney-general.

The writ of quo warranto is denied.