concurring:

While I do not think the petition sets forth sufficient grounds to justify the court in assigning one of its members to hold a court of oyer and terminer in Philadelphia on next Tuesday, the day of the general election in the commonwealth, yet I do not approve of the action of the local judges of that city in refusing the request to sit at their court room on that day. It is to be regretted that of the fifteen judges in the city of Philadelphia, one at least did not respond to the request to be present at the court room in City Hall, next Tuesday so that he might promptly issue necessary writs of habeas corpus and warrants of arrest “for an election fraud, for felony or for wanton breach of the peace.” He need not sit as a court, as his powers as a judge are ample to grant the relief and, by means of the proper process, to protect electors in the exercise of their constitutional rights. The object of the petitioners is, as I understand, to have a judge at a convenient place so that a prompt remedy may be had for the anticipated violations of the rights of the voter and of the officers of the election. Prom the allegations in the petition supported by the records of the criminal courts of Philadelphia showing violations of law at former elections in that city as recited in the petition, the petitioners were justified in apprehending an invasion of the rights of duly qualified electors on Tuesday next, and the request to the judges for protection was reasonable and proper and should have been granted. To ignore or refuse it was to deny to the citizen what unquestionably he had a right to demand. The military power of the commonwealth has recently been called into active service to protect an alleged violation of the rights of property and to maintain the peace. A far more sacred right, that of the elective franchise in the city of Philadelphia, is imperiled if the allegations of this petition be true and they are not ’denied. Yet there seems to be no relief for this great wrong. As appears by a certificate attached to the petition presented to this court, the judges of that city practically ignore the appeal of the electors for protection. I think this is an erroneous view of their duty and the effect of their action will be to encourage the lawless element of the city to do what the petitioners in this application allege they' anticipate being done on election day.

Opinion by

It would be sufficient reason to refuse this petition that the remedies of the petitioners in the regular course of procedure in Philadelphia have not been exhausted. Two judges of the court of quarter sessions of Philadelphia county will sit for the November term on Monday, November 3, and it does not appear that an application to one or both to sit for election matters on Tuesday will not be properly acted upon if made.

But a broader ground for refusal is found in the fact that no sufficient reasons have been presented why such a court is necessary to be held, and still less why we should be called upon to hold it. The reasons set forth by the petitioners why they think it important that a special court should be held on election day are, first, that previous to the act of 1893 making election day a public holiday, it was customary for the court of quarter sessions to be in session, “ a judge usually sitting to hear any questions arising from breaches of the peace and illegal acts committed by election officers and others on that day.” In regard to those, matters all that need be said is that any judge whether of the quarter sessions or of this court could only hear them as a committing magistrate with no more authority in law than any of the numerous magistrates whose regular duty and business it is to exercise this jurisdiction.

Secondly, the petitioners after citing section 14 of article 8 of the constitution, that election officers shall be privileged from arrest on election day except upon warrant of a court of record or judge thereof, say that “ if no court of record is in session that day no arrest can be made of an election officer ” for election frauds, etc. This is an erroneous statement of the law. The power to issue warrants against election officers for election *95frauds is given not only to courts of record but to each and every judge thereof.

There are fifteen judges of the common pleas in Philadelphia, any one of whom has power to act in such matters. It is unreasonable to suppose that no one of them will be within reach if a proper occasion should arise for his presence.

Thirdly, it is said that there are apt to be arrests of challengers and others who should have an opportunity of obtaining writs of habeas corpus. As already said there are fifteen judges with full powers to issue such writs, and it is unreasonable to presume that no one of them can be found if there is proper occasion for his action.

Lastly, and this is probably the moving cause for the petition, it is said that “ election officers on the day of election frequently require and would request instruction as to their legal rights and duties from a court of quarter sessions.” It would probably be useful and conducive to good order and due observance of the laws to have a tribunal to which questions of the kind mentioned might be referred. But there is no legal authority for it. Courts sit to adjudicate actual litigation in the established forms. It is not their duty or their province merely to advise. If this whole court sat to respond to questions from election officers, it could give no judgments; its opinions would be wholly extrajudicial, and the officers could disregard them with impunity. We do not feel called upon to assume such a position or to sanction such departure from established forms.

The effect of an opinion in an election case, extrajudicial, because the court and a judge was without legal jurisdiction over the subject, will be found discussed in Com. ex rel. Howley v. Mercer et al., 190 Pa. 134.

We have given the matters in the petition this careful consideration and review out of regard to the importance of the general subject of election law and the public interest in it.

But we do not think we are called upon to exercise our authority in the matter which while unquestionable is only to be used in exceptional emergencies ; and we are fully satisfied that if the proper case is made out for a special court the regular judicial authorities of Philadelphia will be found not only competent but willing to hold it.

The petition is dismissed.