
    WOLVERTON’S ELECTION CASE.
    A petition to contest an election may bé presented and filed before an Associate Law Judge at chambers.
    In case of a tie either party may contest.
    The election law of May 19, 1874, applies to Northampton County.
    It is not necessary to give notice before filing the petition in an election contest.
    An amendment to the answer was allowed after the testimony was closed, but before argument.
    Where votes are cast for a candidate by his surname, it is competent to show by evidence for whom they are intended.
    
      When ballots are rejected on account of “being deceitfully folded together,” it is not a qaestion of the intention of the voter, but of the appearance of the ballots.
    The action of the election officers in rejecting ballots for this reason is'not conclusive upon the Court.
    The Constitution does not alter the qualifications of electors at borough .elections in Easton.
    The Court refused to permit an amendment to the petition offered after the testimony was all in, the argument finished and the Court had commenced to read the decision in the cases.
    Certiorari to the Court of Quarter Sessions, of Northampton County : No. 101 July Term, 1883.
    At an election held February 20, 1888, in the 3rd ward, of the Borough of Easton, for members of the Town Council, the election officers returned that William H. Wolverton had 123 .votes, Joseph S. Rodenbaugh had 123 votes and - Rodenbaugh had 2 votes. On February 24, 1883, a petition was presented to the Associate Law Judge at chambers setting forth the foregoing return and alleging that the election was undue and illegal, and the return thereof incorrect, and that Joseph S. Rodenbaugh was the only person of that surqame living in that ward and eligible to election as a member of the Town Council, and that the two votes cast for-Rodenbaugh were in fact east for Joseph S. Rodenbaugh, and that Joseph S. Rodenbaugh received 125 votes and that Wm. H. Wolverton the only other person voted tor received only 123 votes. The petition was filed and a rule to answer granted returnable March 3, 1883. On March 3rd Wolverton filed a motion to quash the petition because, 1st. The petition was not presented to the Court but to an Associate La w Judge at chambers. 2nd. That the Court has no jurisdiction because Wolverton was not returned as elected but as having a tie vote. 3rd. That the act of May 19, 1874, relative to elections is not in operation in Northampton county. 4th. That ten days notice of these proceedings was not given to respondent as required by law. On March 12,1883, the Court overruled the motion to quash the petition and directed Wolverton to answer in five days. On March 17,1883, Wolverton filed his answer alleging inter alia that illegal votes cast for Rodenbaugh were received by the election officers. On March 20, E. J. Eox, Esq., was appointed Examiner, who thereupon took testimony and filed his report on April 23. On April 2nd, 1883, respondent asked leave to amend his answer. Amendment was allowed. On April 30, 1883, respondent asked further leave to amend his answer by setting forth.that ten or more persons voted for Joseph S. Rodenbaugh, who had not resided in the ward a sufficient length of time to entitle them to vote. Amendment was allowed and petitioners excepted. The same day the case was argued. On May 7, 1883, the Court decided in favor of Wolverton delivering the following opinion by
    Myers, P. J.:
    After the testimony was closed, and before argument, application was made by the respondent to amend his answer by adding a specification : that ten persons or more voted for the said Joseph S. Rodenbough who had not resided within the Borough of Easton, or within the election district a sufficient length of time preceding the election of February 20, 1883, “to entitle them to vote.” This amendment is clearly allowable. [Marshall vs. Baldwin, 2 Leg. Rec. R., 124; Gibbons vs. Sheppard, 15 P. E. S., 21.] _
    At an election held in the Third Ward in the Borough of Easton, on the 20th of February, 1883, there were cast for members of Town Council 123 votes for Joseph S. Rodenbough, 123 votes for W. IT. Wolverton and two votes for-Rodenbough. The evidence shows that another vote was cast for W. H. W olverton, , but was rejected by the election officers on the ground that two ballots were deceitfully folded together. The material questions .of law and fact raised by the pleadings and evidence are: (1) Whether the two votes cast for-Rodenbough ought to be counted for Joseph S. Rodenbough ; (2) whether the vote cast for W. II. Wolverton was properly rejected, and whether the action of the election officers in the premises is final and conclusive, and (3) whether the votes of Abraham Walter, Philip Kessler and Montville Young were properly received and counted for Joseph S. Rodenbough, the said persons casting them not having resided in the Borough of Easton for one whole year immediate preceding said election. There is not much difficulty in disposing of the first two questions.
    First- — It is well'settled that where a vote or votes are cast for a person by his surname, it is competent to show by evidence that the intention of the voter or voters was to east the vote or votes for a certain known person of that name. The last adjudication of this question by the Supreme Court was in Reifsnyder vs. Musser, 12 W. N. C. 155, where it was held that a vote cast for-Reifsnyder for the office of Justice .of the Peace, where I.,H. Reifsnyder was a candidate, should be counted for 1. PI. Reifsnyder, upon the testimony of the elector who cast the ballot, that he intended to vote I. H. Reifsnyder. We have precisely the same testimony in this proceeding. In addition, there is the further testimony that the only ■ persons who were candidates for member of Town Council in the Third Ward, were W. H. Wolverton and Joseph S. Rodenbough, and that there was no other person residing in said ward at the time of the election by the name of Rodenbough, who was eligible for the office of Town Council. The two votes'must therefore be counted for Joseph S. Rodenbough.
    Second — Whether the vote cast for W. H. Wolverton was properly rejected depends upon the meaning of the words “deceitfully folded together,” in the 73rd section of the act of July 2, 1839, Brightly 551, which provides, that “if any two or more of such papers (tickets) be deceitfully 'folded together, such tickets shall be rejected and not counted among the votes.” The contention on behalf of Rodenbough is that the qualifying adverb, “deceitfully,” has reference only to the manner in which the tickets are folded, and not the intention of the voter in that respect. That if the tickets, in manner and appearance are deceitfully folded together, they must be rejected by the election ■officers, as well as by the Court for the same reason. We think this is the proper construction. It is manifest that the election officers at the time they counted the votes could not resort to other testimony for the purpose of ascertaining the intention of the voters. We, however, do not think that the action of the election officers is conclusive on the Court.
    The fact may be that the tickets which were rejected may not In manner and appearance have been deceitfully folded together, and, therefore, is such a fact' which we think the Court have a right to inquire into. But this does not give the voter a right to testify that it was not his intention either to fold two or more tiesi-.ts together, or to do so deceitfully. It may be argued that where a person cast a vote for a pérson only by his surname, there the voter has the right to testify as to his intention. But the right as well as the effect of his testimony in that case is based upon the existence of another iact, viz: that a person by that name was a candidate and voted for a particular office. Suppose John Smith and John Jones were the only candidates for the same office, and a voter cast a ballot by mistake for John Wolfe, it would not be competent for him to testify that it was his intentiorrto vote for John Smith. While the action of the election officers is not conclusive, the burden, nevertheless, is on the piarty who seeks to reinstate the vote that was rejected ; that the tickets were not in manner and appearance deceitfully folded together. The evidence fails to establish that; and, therefore, the ballot that was rejected cannot be reinstated and counted for W. H. Wolverton.
    Third - The question whether Abraham Walter, Philip Kessler and Montville Young were legal voters for members of Town Council is one not free from difficulty. The fact is clearly established by the evidence that these persons did not reside in the Borough of Easton for one ivhole year next preceding the election of February 20, 1883, and that they voted for Joseph S. Rodenbough for member of Town Council. The fifth section of the act of September 23, 1789, incorporating the Borough of Easton, provides who are qualified persons to elect and choose by ballot five burgesses, viz: “The burgesses, constable and freeholders, together with such inhabitants, housekeepers within the said borough, as shall have resided therein at least for the space of one year next preceding any such election as is hereinafter directed, etc.” At the time this act was passed, the Constitution of 1776 was in force, which provided, “That every freeman of the full age of twenty-one years, having resided in this State for the space of one whole year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the rights of an elector; Provided, always, that sons of freeholders of the age of twenty-one years shall be entitled to vote, although they have not paid taxes.” By the Constitution of 1790 it is provided that, “in elections by the citizens, every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid State or County tax, which, shall have been assessed at least six months before the election, shall enjoy the rights of an elector, provided, that the sons of persons qualified as aforesaid, between the ages of twenty-one and twenty-two years, shall be entitled to vote, although they shall not have paid taxes.” By the second section of the act of the 19th of March, 1828, supplementary to the act incorporating the Borough of Easton, it is provided : “That the inhabitants of the said borough entitled to vote for members of the General Assembly, who shall have resided within the same for one whole year immediately preceding the election, hereinafter mentioned, shall have power on the 5th of April, 1828, and on the Friday preceding the third Saturday in March, in each year hereafter, to meet at the Court House, in said borough, and then and there, between the hours of 2 and 6 in the afternoon, elect by ballot members of a Town Council for said borough.” It shall be observed that the Constitution of 1776 limits the right of persons to be electors to freemen, but does not provide for the residence of the elector for any definite period in the district where he offers to vote, but simply limits his residence in the State for one year. It, however, provides for the payment by the elector of public taxes within that period. The act of 1789 (supra) provides that the inhabitant shall be a housekeeper and a resident within the borough for one year next preceding the election for burgesses, but does not require the payment of any taxes. The Constitution of 1786 enlarged the period of residence of the elector, as provided in the Constitution of 1776, from one year to two years, but does not provide for his residence for any definite period within the district where he offers to vote. By, the Constitution of 1838 the qualifications of an elector are expressed almost in the precise words of the Constitution of 1790. It, however, reduces the time of residence in the State from two years to one year, requires a residence in the district where he offers to vote ten days immediately preceding the election, and the State or County tax required to be paid, to be assessed at least ten days before the election, instead of six months, as required by the Constitution of 1790. The qualifications of an •elector by the Constitution of 1874 are nearly the same as that of the Constitution of 1838, except the phraseology is somewhat different. In addition to the requirements of the Constitution of 1838 it provides that a voter must have been a citizen of the United States at least one month, that he resided in the election district at least two months immediately preceding election instead of ten days as provided by the Constitution of 1838, and that the taxes required to be paid shall have been assessed at least one month before the election. The main question is, whether the qualification of the elector at an election for Town Council is to be determined by the statutes incorporating the Borough of Easton and the supplements thereto or by the Constitution. In the absence of any express decision, and upon the reading of the provisions in the Constitution, the impression made upon the mind is that the Constitution must determine the question. It is contended on behalf of Bodenbough that the reason why the Constitution of 1873 should be the guide, is that Constitution defines the qualification of an elector as to “all elections.” "We do not think that the words “all elections” are necessarily more comprehensive than the words in the Constitutions of 1790 and 1838, which are “in elections by the citizens.” The question whether the Legislature on granting charters of incorporation to cities and boroughs, has the constitutional right to require a period of residence in the city or borough, and the payment of taxes, etc., by a citizen, different from that of the Constitution, to qualify him to vote for corporate officers, as distinct from State, county and township officers, has not been expressly decided by the Supreme Court. The case that comes nearest to it is Stewart vs. Foster, 2 Binn, 110. The case grew out of an election for corporate officers in the Borough of Pittsburg in 1809. Stewart, the plaintiff, offered his vote, he being a freeholder in the borough, resided therein one year immediately preceding the election, and within that time paid a borough tax. The defendants, who were the Inspectors and Judge of Election, refused the vote on the ground that the plaintiff was not a citizen, and not entitled to vote for members of the general assembly. The case, as prevented to the Court below and the Supreme Court, turned exclusively upon the act of April 22, 1794, incorporating the Borough of Pittsburg, and the acts of March 5, 1804, and March 7, 1805, relating to said borough. The act of 1794 (supra) provides that “the freeholders and other inhabitants, housekeepers in the borough, are authorized to elect two fit persons to be burgesses, who were to be freeholders, and also to elect four suitable persons, assistants to said burgess, etc.; provided that no person should be entitled to vote, or to be elected, unless he should have been a resident in the borough at least a year previous to the election.” The act of 1804 (supra) provides that “the freeholders, housekeepers, and other inhabitants of the said borough, who have resided within the same at least one year immediately preceding the election, and within that time paid a borough tax, shall have power to elect one reputable citizen residing therein, to be styled the chief burgess, and thirteen reputable citizens to be a town council,” etc. The act of 1805 provides : “That the inhabitants of the Borough of Pittsburg, who shall have resided within the same six months immediately preceding the election and who shall in other respects be entitled to vote for members of the general assembly, shall be fully competent to vote at the election of officers'of said borough. These several acts were passed while the Constitution of 1790 was in force, and are clearly in contravention of the express letter of that instrument as defining the qualification of the general elector. Yet neither the counsel in the ease above referred to, the Court below or the three judges of the Supreme Court in their opinions make any reference to the constitutional provision as¡ affecting the right of the plaintiff to vote at a borough election for corporate officers. The plaintiff was an alien, he resided in the Borough of Pittsburg one year next preceding the election? and only paid a borough tax within that time, yet the Supreme Court by the unanimous opinion of all the judges, viz., Tilghman, Yeates and Breckenridge, held that he was entitled to vote at the borough election under the statutes, notwithstanding the fact that the fundamental law of the land defined the qualification of the general elector to be, that he should have been a citizen, a freeman, a resident in the State for two years next before the election, and within that time paid a state or county tax assessed in the manner therein provided. Iu Scranton Borough election case, Brightly’s leading cases on elections, 455, the syllabus, is, “that the provisions of a borough charter requiring six months’ residence and payment of a borough tax, as a qualification for a voter at an election for borough officers, do not apply to electors of township officers or officers of a similar character within the borough; the qualifications of such elections are given by the Constitution and general laws. This was a contest relative'to the election of certain township and corporate officers in the Borough of Scranton. At the election, in addition to charter officers, persons were voted for for township officers, viz., Assessor and Assistant Assessor, Auditors, Overseers of the Poor and School Directors. One of the qualifications of an elector for corporate officers in the charter of incorporation of said borough under, the act of 1851 was a residence in the borough of six months immediately preceding the election and payment of a borough tax. The election officers applied this rule to all persons offering to vote for township as well as corporate officers. The case was heard before Judge Conyngham. In his opinion, which is quite elaborate, he designates a borough election to be of a “double character, where the proper charter officers are elected, and other officers of a more general nature, similar to the township officers found in other municipal divisions.” * * * “Both these elections, or the double elections,” says the learned Judge,' “are public, and voted at by residents of the borough ; but the chamber officers (otherwise the corporate officers) are to be elected by residents or corporators, who are qualified voters under the several laws relating to elections. For the qualifications of the former, the charter is to be looked to; for those of the latter class, the Constitution and General Laws of the fixate. Even an alien inhabitant, under some of the old charters, had the right to vote at a charter election though he never could be a voter at the other election ;” citing Stewart vs. Foster, 2 Bin. 110, and the case of the Borough of West Philadelphia, 5 W. & S. 281. I have already referred to the case of Foster vs. Stewart. The other case was a proceeding in Court to incorporate the Borough of West Philadelphia into a borough. Judge Gibson, in speaking of the power of the Legislature in granting charters of incorporations, says “that the Legislature may certainly authorize a corporation to enact ordinances and bylaws; for these are not only incidental, but rules of self-government, such as any other individual may prescribe for his own conduct, and it may also authorize to assume corporate powers in specific cases on the performance of certain conditions, as it has done in cases of associations for literary, charitable or religious purposes.” Judge Conyngham, in speaking of this double election of township officers within the meaning of the general statute, and of charter officers, says “that it secures to every one the rights promised him by the Constitution and General Laws of the State, in connection with all other citizens ; while at the same time it makes him subject to borough regulations and limitations which he agreed to assume and submit to, by voluntary becoming a corporator and a citizen of a particular borough.” * * * “We cannot then,” says the learned Judge, “come to any other conclusion but that, as to inspectors, &c., and officers who, under the Act of 1834 and its supplements, are called ‘township officers,’ and also are to be voted for by citizens of a borough, as public officers, under the same general regulations and authority, the true qualifications of a voter are the constitutional and statutory provisions of the Act of 1839 before referred to; and that the further prerequisite of residence for six months and payment of a borough tax, under the Act of 1851, cannot be required m a voter, offering to vote for such officers. Such a limitation is entirely proper and lawful in deciding upon the qualifications of a voter offering to vote for charter or corporate officers of a borough.” To the same effect Com. vs. Hosier, 5 Luz. Reg. 158. Tn 1 Dillon on Municipal Corporation, sec. 13, the author says: “The qualifications of electors or voters are fixed by the' Constitution and laws, and cannot be changed by any ordinance or act of the corporation. Residence for a certain period within the municipality is almost invariably required in express terms as one of the qualifications of the right to vote at elections therein, and as one of the qualifications of the right to vote at elections therein, and as one of the conditions of eligibility to hold a municipal office.” It is manifest that the words “residence for a certain period within the municipality” do not refer to the period of residence required by the Constitution as one of the qualifications of the general •elector in the State. That the Legislature of this State, the Executive and his legal adviser so understood and interpreted the several provisions of the Constitution of 1790 and 1838 in respect to electors is manifest by the enactment of numerous special statutes incorporating boroughs and of general borough laws. I examined at random sixteen statutes passed from 1802 to 1852, a period of half a century, incorporating boroughs, and in every one there is a provision requiring the voter to reside within the limits of the borough from one to twelve months immediately prior to an election for corporate officers, as prerequisite qualification to vote for such officers. By the general borough law of April 1, 1834, the qualification of an inhabitant to vote for members of Town Council is residence within the borough at least six months immediately preceding the election and within one year paid a borough tax. This act was passed while the Constitution of 1790 was in force. On the 3d of April, 1851 [and under the Constitution of 1838], a more comprehensive general borough law was passed, the 16th section of which provides that “every person entitled to vote for members of the General Assembly, having resided in the borough six months immediately preceding the election «and within one year paid a borough tax, if such shall have been levied, shall be entitled to vote at the borough election. The 17th section provides in separate paragraphs for the election of the corporate officers designated by the charter, and the different township officers under the general laws of the State. It is clear to my mind that boroughs^ in respect to their special corporate officers, and their election and duties under the charter are not political divisions or entities of the State, like counties and townships, and are not so recognized by the Constitution. Officers of counties and townships, and some officers of wards and boroughs, such as .Justices of the Peace, Judge and Insepctors of Elections, Assessors, &c., are the creations of the Constitution and of the general laws and are common throughout the entire State. The office of Member of Town Council, Borough Treasurer and other corporate officers are special creations, either under special laws or general laws (like a borough law) for exceptional localities and purposes. These latter officers are not a part of the general political divisions of the State, such as counties and townships, the latter being solely regulated by the Constitution and general laws. Dillon in his work on municipal corporations, sec. 17, says: “The proposition which lies at the foundation of the law of corporations in this country, is, that here all corporations, public and private, exist and 'can exist only by virtue of express legislative enactment, creating, or authorizing the creation of the corporate body. Legislative sanction is absolutely essential to lawful corporate existence.” And in sec. 19th the author says: “The qualifications of the voters are fixed by the charter, which are usually, that the voter shall be a male citizen of the United States and of the State, be of age, and a resident, for a specified time, within the limits of the corporation” And in sec. 23, speaking of municipal corporations, he says: “These are imperative and binding without any consent (of the corporation) unless the act is expressly made conditional. All who live within the limits of the incorporated district are bound by them and can only withdraw from the corporation by removal. Over such corporations the legislature, unless retained by the Constitutution, has entire control,” &c. The Legislature of Ohio passed an amendment to a city charter which was to take effect only when adopted “by a majority of the voters of the city.” It was therefore held in Eoote vs. Cincinnati, 11 Ohio 408, “that this was considered to manifest the intention to present the question of acceptance to the voters of a regular city election.” The Council ordered the vote to be taken at the township polls ; the voters of the two organizations possessing different qualifications, but the township and city occupied precisely the same territory. It was further held that the election was of no validity, and that the amendment had never been accepted. And in section 24 the author says that “although the Constitution of a state may recognize the municipal corporation of an important city by fixing the number of certain officers, and providing for their election, etc., yet this does not make the charter of the city a Constitutional charter conferring power beyond the control of the Legislature. Citing Baltimore vs. Board of Police, 15 Md¡, 376. I can well understand why a longer period of residence was required by the numerous statutes incorporating boroughs, and in the General Borough Laws, than that are provided by the Constitution and General Laws, to entitle a person to vote for corporate officers. The duties and powers of a Town Council are not ordinary in their character, and the needs and requirements of a borough are more numerous and different from those of townships, towns and villages. The duties and powers of a Town Council are in many respects legislative, judicial and ministerial, and the needs of a borough relate to police regulations, extinguishment of fires, laying out, opening, grading and paving of streets and alleys, lighting the streets, sanitary affairs, public amusements, the introduction of gas and water, regulating markets, imposing penalties for violating ordinances, &c., &c., Most of these matters are outside of township affairs. If the constitution is the sole guide, then under that of 1790, which did not require residence for any definite period in the district where a person offered to vote, such person might take up his residence in a borough on the day of election, and would be entitled to vote for corporate officers. The fact that the duties and powers of a town council are extraordinary, and the needs of a borough are peculiar, no doubt are reasons which underlie the uniform legislation of over half a century, requiring a residence in a borough for corporate officer, for a longer period than the time limited to the general elector in the constitution, on the ground that the voters might become fully informed as to the duties and powers of a town council, the needs' of a borough and have a sufficient interest in the management of borough affairs. They also shed some light on the meaning of the constitutional provision, as indicating the purpose of the framers of that instrument only to define an elector’s qualifications in respect to the elections that are common throughout the state, where the officers there elected are part of the machinery to carry into effect a scheme of a republican form of government throughout the state, and in whose duties all the people of the state have a common interest. Speaking of this kind of an election for township officers^ Judge Conyngham,.on the Scranton case, 460, says : Such an election is regarded as a public election by the people throughout the state, voting in their several districts, for a common purpose and object, and, therefore, to be governed by similar rules.” Substantially the same question was raised in North Carolina in Peopié vs. Canaday, 73, N. C., 198. The constitution of that state provides: “That every male person, twenty-one years of age, resident in the state twelve months and in the county thirty days, shall be an elector.” After the formation of the constitution, the legislature amended the charter of the city of Wilmington, and inter alia, required as a,qualification for an elector to vote in said city for corporate officers, ninety day’s residence in the ward he offered to vote in, immediately preceding .the election. The Supreme Court held that provision was unconstitutional. The question was presented to the Court to some extent, in the manner it was discussed by Judge Conyngham in the Scranton case, viz: Whether under the constitution incorporated cities and towns, like counties and townships, are parts and parcels of the state organization, organized for the convenience of self-government. The court held they were. The limited time that I had to examine this case, at the Lehigh University (the book not being in Easton), however, satisfied me that the conclusion reached by the Court, that an incorporated city, under the constitution of North Carolina, is one of the polical divisions of the state, the same as a county and township, is based upon certain provisions in the constitution. As, for example, section 16, article 2, recognizes counties, cities and towns as political entities in the political divisions of the state. Section 3, article 7 provides for the organization of municipal corporations. Section 7, article 7, provides that no city, town or other municipal corporation shall contract any debt unless by a vote of a majority of the qualified voters therein. The constitution was adopted in 1868, and in the same convention, by ordinance, amending the charters of the cities of the cities of Wilmington and Raleigh, showed that the framers of the constitution thought the suffrage clause, article 6, section 1, applied to cities and towns. These gaye a contemporary construction placed upon the constitution by the body which formed it, and the people ratified it with notice of this construction. That decision, we think, is no authority in this case, in the absence of any provision in the constitution of 1873, from which it can be fairly inferred, that boroughs and cities are political entities of the state in character as corporations for municipal purposes. It is true that the article on “election and suffrage” in the Constitution of 1873 fix a time for holding general elections, and elections for city, ward, borough and township officers. We do not think that the mere fixing of the time for holding such elections in boroughs, which necessarily includes the election oí township officers in the borough, is a recognition of a borough, as a political division of the State in respect to the rights of corporators and the duties and powers of corporate officers.
    The contention on behalf of Rodenbough is, that the constitution ot 1873 is the sole guide in ascertaining the qualification of electors for borough officers. Section 2, of the schedule to said constitution, provides that: “All laws in force in this commonwealth at the time of the adoption of this constitution, not inconsistent therewith, and all rights, actions, prosecutions and contracts shall continue as if this constitution had not been adopted.” It is ■claimed that the act of 1828 (supra) is inconsistent with the suffrage, clause of the constitution. There is a similar provision in the schedule to the constitution of 1838, and it is quite manifest that the .people and legislature of this state did not think that the ■suffrage article in that constitution was inconsistent with the general borough law of 1834, relating to an elector’s qualification to vote for borough officers; for the legislature of 1851, passed a more comprehensive general borough law, and retained the same •qualification of an elector for borough purposes, as in the act of 1834. To hold that the constitution of'1873 repeals the act of 1828, we would virtually have to say that all the legislation, both special and general, during a period of over half a century, ■defining the qualifications of electors in boroughs for corporate officers, was unconstitutional under the constitutions of 1790 .and 1838. This we are not prepared to do. An act of assembly is presumed to be constitutional, unless shown to be unconstitutional by the party who alleges that it is so. The court will not declare an act of assembly void, unless it violates the constitution, clearly, palpably, plainly and in. such a manner as to preclude doubt or hesitation. Speer vs. School Directors, 14 Wr. 150. The same rule must be applied where it is claimed that the constitution repeals no existing law. It has been held in numerous cases that the constitution of 1873 did not annul existing laws, •except where the intent was expressed in unambiguous language —1 Bright Dig. of cases, 322, and cases there cited. There is ^nothing in the several articles on suffrage in the constitutions of 1790, 1838 and 1873, that calls for a different construction as applicable to the qualifications of an elector in a borough offering "to vote for charter officers. If the constitution of 1873 is the sole guide as to the qualification of such elector, then the constitutions of 1790 and 1838 were also the sole guide. We have already shown that the courts did not so hold in two eases, but held that resort must be had to a corporation charter to ascertain the ■qualification of the elector. As to the meaning of the provisions of the constitutions of 1790 and 1838, it was held, in Moers vs. Reading, 21 Pa. 188: “That the uniform construction given to a provision of the constitution by the legislature, with the silent acquiescence of the people, including the legal profession and judiciary, and the injurious results which would ensue from a contrary interpretation, are proper elements of a legal judgment on the subject.” It is true the supplementary act of March 8, 1856, to the act incorporating the Borough of Easton, provides for the election of three members of town council in each ward, by the qualified voters of each ward. The term “qualified voters” necessarily refers to such persons who were made qualified voters by any previous legislation on the same subject matter, relating to .said borough. These acts must be construed together, and the Court has no right to resort to any other legislation or constitutional provision, that does not expressly, or by clear implication, relate to the same subject matter, to wit: the qualification of electors in boroughs. The conclusion that we have reached is, that the act of 1828 is the only rule as to qualification of electors for corporate officers in the borough of Easton. It follows, therefore, that Walter, Kessler and Young were not qualified electors to vote for member of Town Council. In determining this question we are fully conscious of its gravity and importance. An able legal writer on the spbject of a municipal corporation, has well said, “that the construction of its various provisions, and the determination which these bear to the general status of the state ; how far the charter controls or how far it is controlled by other legislation, are among the most difficult problems which perplex the lawyers and the judge.”
    Applying the law to the ascertained facts in this proceeding we arrive at the following result:
    W. H. Wolverton received.......................123 votes.
    •Joseph S. Rodenbough received..........123 votes
    From which deduct votes of Walter, Kessler
    and Young........................ 3 votes
    120 votes
    To which add votes cast for Rodenbough..... 2 votes
    -122 votes.
    Majority for W. H. Wolverton 1 vote.
    
      The 9th section of the Act of May 19, 1824, Brightly, 1872, provides that, “in contested elections of President or Additional Law Judges. Senators and members of the House of Representatives, and of county borough, township or municipal officers, in which the Court or Judge shall not decide that the complaint is without probable cause, the proper district, county, city, township, ward, borough, school district or municipality, shall be liable to pay all costs.” In this proceeding we hold that there was probable cause for the petitioners to make the complaint, and that the borough of Easton is liable to pay the costs.
    And now May 7, 1883, it is ordered and adjudged that'W. H. Wolverton received the greatest number of legal votes for member of Town Council for the Third Ward in the borough of Easton at‘an election held in said ward, on the 20th of February, 1883, and the said W. II. Wolverton is entitled to the certificate of election. And it is further ordered that the borough of Easton pay all the costs of this proceeding.
    On May 8, 1883, the petitioners asked leave to amend their petition by adding that three or more persons who had not resided in the borough of Easton for one year and upwards, prior to the election, had voted for Wolverton, and that if they were deducted from the vote returned, it would change the result. They also prayed that the matter might be referred back to the examiner. The Court refused to allow the amendment. Petitioners then 1 sued out a writ of certiorari, having excepted to the several rulings of the Court and assigned the rulings of the Court as the errors complained of.
    R. C. Stewart and Morris Kirkpatrick, Esqs., for plaintiff
    in error argued that • there was nothing in the answer averring that the votes of Walter, Kessler and Young were illegal until the amendment of April 30, 1883. That petitioners had not notice of the amendment and hearing as is required by the act of May 19, 1874, Section 18 P. L. 213, in reference to amendments to the petition, and cited the case of Weaver vs. Given, 1 Brewster 170, to the effect that the same rules apply to the answer as to the petition. The record shows the error and the Supreme Court can review it. Chase vs. Miller, 5 Wright 403.
    
      The Court should have allowed the amendment to the petition. Election Cases, 15 Smith 21. Sheppard’s case, 27 Smith, 301.
    When the right of amendment is conferred by statute it is a matter of right not of favor. Clymer vs. Thomas, 7 S. & R., 177; Cassell vs. Cooke, 8 S. & R., 268; Maus vs. Montgomery, 10 S. & R., 191; Newlin vs. Palmer, 11 S. & R., 98; Proper vs. Luce, 2 P. & W., 65; Smith vs. Ressler, 8 Wright, 144; Marshall vs. Baldwin, 2 Schuylkill Legal Record, 124.
    A palpable and gross abuse of the discretion of the Court below will be reviewed. Gamble vs. Woods, 3 Smith, 58; Neeld’s Appeal, 20 Smith, 118. Amendments should be allowed in the interest of justice. Trego vs. Lewis, 8 Smith, 463; Steffy vs. Carpenter, 1 Wright, 41. Granting the right of amendment to one party while denjfing it to his opponent, is an “excess of power in the exercise of a discretionary function,” which is cognizable on a writ of error. Bailey vs. Musgrave, 2 S. & R., 220; Husten vs. Mitchell, 14 S. & R., 310; Catlin vs. Robinson, 2 Watts, 280.
    
      Henry W. Scott, Esq., contra,
    
    argued that the amendment to the petition prayed for was after the Court began to read their decision and introduced an entirely new cause of action and was substantially a new petition. He also moved to quash the cer - tiorari because no special allocatur was granted and cited, Ewing vs. Thompson, 7 Wright, 372; Ewing vs. Filley, 7 Wright, 384; Freeman vs. Directors, 1 Wright, 385. In re Thirty-fourth St., 31 P. F. S., 27.
    The decision of the Court below is final on the merits. Luzerne vs. Trimmer, 14 N. 97; Election Cases, 15 Smith 20; Commonwealth vs. Nathans, 5 Barr, 124; Carpenter’s Case, 2 Harris, 486; Esling’s Appeal, 8 Norris, 205; Matthews’ Case, 11 Norris, 138; Barnes vs. Commonwealth, 11 W. N. C., 375; Germantown avenue, 12 W. N. C., 200; Commonwealth vs. Garrigues, 4 Casey, 9; Commonwealth vs. Baxter, 11 Casey, 263.
    Exceptions are not allowed in the Quarter Sessions. Chase vs. Miller, 5 Wright 403; Election Cases, 15 Smith, 20.
    The opinion of the Court below is no part of the record. Carpenter’s Appeal, 11 W. N. C., 162; Peet vs. Pittsburg, 15 Norris, 218; Election Cases, 15 Smith, 30; Bradford township vs. Goshen township, 7 Smith, 495.
    
      Charters are hot altered by the new Constitution. Penna. R. R. Co. vs. Langdon, 11 Norris, 35. Hays vs. Commonwealth, 1 Norris, 518; Lehigh Iron Co. vs. Macungie, 31 P. F. Smith, 482.
   The following decision was rendered by the Supreme Court on June 1, 1883:

Per CuriaM :

Rule to show cause why writ shall not be quashed, discharged ; allocatur allowed nunc pro tunc, and judgment affirmed.  