Opinion by
Henry B. Leader was a candidate in 1966 for State Senator in the 28th Senatorial District, which comprises the major part of York County. After the ballots had been cast on November 8, 1966, Mr. Leader, with his attorneys, appeared before the York County Board of Elections and moved that the board not proceed with the counting of absentee ballots because, he asserted, that the section of the Elеction Code which empowered the county board of elections to canvass absentee ballots (Act of August 13, 1963, P. L. 707, 25 P.S. §3146.1-3146.9) was unconstitutional insofar as it applied to civilians’ absentee ballots, on thе basis that it violated Article VIII, §19 of the Constitution of Pennsylvania.
The board refused the motion and proceeded to tabulate the absentee ballots. Mr. Leader then filed a petition in the Court of Common Pleas of York County, reasserting the unconstitutionality of the contro
The question now before us was considered and resolved in the Absentee Ballots Case (No. 1),
The insuperable obstacle which confronts the appellant in this case is that the election mаchinery as presently set up makes impossible what he declares should have been done in the 1966 election. He urges that the district elections boards and not the county election board should have counted the absentee ballots, but how could they? A district election board sits on election day and, after the polls close, the members thereof immediately proceed to tabulatе the results shown on the voting machines, or the written ballots. When this has been accomplished, the job of the district election board is done. Its operation is at an end. It may not convene again to сonsider absentee ballots or any other kind of ballot. It has no permanent office at which complaints may be registered.
Under present law, absentee ballots must be placed in the mail by the vоters no later than at the end of the day on which the election is held. This means that since the ballots are mailed from a distant point, they might well not arrive at the place where the district electiоn board sits until days after the board has completed its labors and has disbanded. The district elec
In the face, therefore, of the impossibility of the district boards canvassing the absentee ballots during their ephemeral existence, it would be unfair, unreasonable and unjust to disfranchise the absentee voters who simply did what they were required to do by the election authorities.
Perhaps the Legislature should amend the election code to provide that absentee ballots must be mailed at such a time to insure their arriving at the district-election board the day before the date of the election, on penalty of invalidation of such ballots that arrive later. With machinery of this kind, the district election boards could efficiently, speedily and properly handle all absentee ballots on election day so that when the computation would hаve been completed, it would include the counting of the ballots of those who voted by mail, as well as those who voted in person.
But this was not the state of the law on November 8, 1966, and we cannot found а decision on law that did not exist at the time the controverted event occurred. Nor can we, in the discharge of our appellate duties, declare unconstitutional an Act of the Legislaturе that contains no inherent constitutional infirmities, and particularly is this true in the absence of the slightest suggestion of any fraud, mistake or impropriety in the casting or counting of the pivotal ballots.
In considering a constitutional question we are guided by the principle clearly enunciated in Daly v. Hemphill,
The provision of the Constitution under discussion provides that “The Legislature may by genеral law provide a manner . . . for the return and canvass of their votes in the election district in which they respectively reside.” In interpreting language of this character, the illustrious Chief Justice Gibson of this Court sаid: “A constitution is not to receive a technical construction, like a common-law instrument or a statute. It is to be interpreted so as to carry out the great principles of government, not to defeat them-, and to that end its commands as to the time or manner of performing an act are to be considered as merely directory whenever it is not said that the act shall be performed at the time, or in the manner prescribed, and no other.” Com. v. Clark, 7 W. & S. 127. (Emphasis supplied. )
• The great responsibilities of government in this case dictate that the questioned ballots be counted and totaled, firstly, because the legislature has nоt provided for a method to tally the ballots other than the method which has been followed now for three decades, and, secondly, it is not urged that in the computing of the ballots by the county board the appellant was denied votes due him, as the result of mischief, mistake or mishap.
But, beyond all this, one cardinal principle shines over the field of controversy like the beam of a lighthouse over hazаrdous waters, namely, that the will and intent of the voter, clearly expressed, must be the paramount consideration in determining the result of any election. In Contested Election of E. R. Wheelock,
Other pronouncements on this subject follow: “Every rationalization within the realm of сommon sense should aim at saving the ballot rather than voiding it.” Norwood Election Contest,
In the case at bar, no one questions that the electors unmistakably indicated their preferences, no one questions that they followed election procеdure as indicated to them, no one questions that the absentee ballots correctly reflected the intention of the absentee voters. The only question is who should have counted the ballots? It is not contended that the ballots were tallied by strangers to government. The ballots were scrutinized, studied and eventually passed upon by a constitutional body that has been counting absentee ballots under existing law for 30 years. In addition, the ballots were counted in the presence of the appellant’s representatives.
As in the Lackawanna County case, the appellant here also argues that the members of the county board of elections are not “election officers” as defined in the Constitutiоn. We ruled on this contention in the Lackawanna County case, and dispose of it in the same manner here, adding, with approval, what was said in the lower court in this case: “The votes will all be credited tо the proper candidates under the directions of the statute and the will of the voters thus given proper effect. We think that the argument that the county commissioners are disqualified to canvass the bаllots is without merit. This is based on Article VIII, Section 15, which prohibits certain officials from sitting as members of a district election board. They are not so sitting, and nowhere in the constitution is there any requirements that absеntee ballots be canvassed by a district election board and by no one else.” (Emphasis supplied).
The order of the court below is affirmed.