280 Pa. 159 | Pa. | 1924
Opinion by
When the Court of Common Pleas of Lackawanna County came to compute the returns for the election held November 6,1923, it was confronted with this situation in the Third District of the First Ward of the City of Carbondale: There was but one triplicate return sheet returned which was signed-only by the judge of election, not by any of the other election officers, and certified to by the democratic overseer. If this paper was accepted and the votes counted as shown on it, the democratic candidate for mayor had a majority of votes in the city and was entitled to be certified as elected; if not accepted and the vote of the district not counted, the republican candidate would win. What was the court to do, accept the incomplete return and compute the vote from it, throw out the entire district, or open the ballot box, see what it disclosed and count the ballots to ascertain what was the actual result of the balloting? The latter course was pursued and the computing board directed to count the ballots in the box, which verified the incomplete return so far as the office of mayor is concerned, with the result that the democratic mayoralty candidate headed the poll in the city and was duly certified as elected. These appeals followed. While there are four of them, the only office involved is that of mayor, as the court found: “Whether we accept the return of votes in the Third District of the First Ward of Carbon-dale as signed by Gentile and Caviston, or the return of votes as the two inspectors and the two clerks and the republican overseer claim it should have been returned, or whether we accept the return of the computing board based upon a careful count of the ballots in the box, Hart would still be elected city treasurer and Golden and Kerins would be elected school directors of the City of Carbondale.”
The position of counsel appearing before us in support of the appeals is that (1), in the absence of a return by the election officers, the court had no jurisdiction to open
Having in view that the purpose in holding elections is to register the actual expression of the electorate’s will, it is to our minds impossible of conclusion, if justice is to be done and the true result of the poll be made manifest, where the return made by election officers is mistaken, inconclusive, manifestly erroneous or palpably fraudulent, that the computing judges sitting for the purpose of certifying the correct outcome of the balloting have not the power, indeed the duty, to go into the ballot box itself to see what was the true result. If a return is in such shape either from mistake, ignorance or fraud that in fairness nothing can be predicated upon it, certainly it could not be properly determined, with the evidence in the ballot box as to what was the true vote, that the court sitting to make that determination must find its hand palsied when it would raise the lid of the box to obtain the answer from its contents, otherwise impossible of answer, with the resulting wrong that those whose wish had been expressed in the receptacle are disfranchised, unless some legislative enactment forbids. On the contrary, we think section 13 of the Act of January 30,1874, P. L. 31, as amended by the Acts of April 28, 1899, P. L. 127, May 6,1909, P. L. 425, and May 19,
This is in reality the case of a missing return as the one before the court was inadequate and incomplete and in effect no return at all. The attack upon it as made by the judge of election and overseer, was begun through a petition filed by appellants, in which it was alleged there had been a fraudulent transfer of 30 votes, which were cast for the republican candidate for mayor, to his democratic competitor after the first count of the ballots, that the judge of election had erased this number of tallies on the tally sheet for the republican candidate and added them to the tally for the democratic candidate, and had falsified the true count- on the return sheet
As a result of this testimony, on Monday, November 12th, the court handed down an opinion sustaining the objection made on behalf of the appellants, but ordering a recount of the ballots in the box, to which order an objection was made by appellants, which was overruled and exception noted. When this purpose to open the box was decided upon, and not until then, did appellants set. up the claim that the ballots therein did not correctly evidence the vote as cast, and charges that the judge of election, after the first count was completed, had taken ballots therefrom and fraudulently marked them for the democratic candidates. Testimony was taken as to this and the court found that the used ballots and stubs all corresponded and the unused ballots were all accounted for. In the opinions filed, it is stated: “All the election officers were sworn and examined on November 10th, yet none of them even suggested that there had been any tampering with the ballots, the only allegation then being that they were not correctly counted.......Immediately after we ordered the ballots in the box recounted, the petitioners, through their attorney, alleged that the ballots had been tampered with. Thereupon, on November 13, 1923, the court proceeded to further hearing.” Speaking of what was shown in support of the allegation of tampering with the ballots and in connection therewith as to the ballots themselves, the court said: “For any member of the board to defeat Wright for mayor by
We conclude that when sitting as return judges to compute the vote cast at an election the court has authority under the act of assembly, whenever in its opinion “it
We have not adverted to all the facts and circumstances shown by the record connected with this proceeding and the election out of which it grows and pointed to by counsel in their arguments and briefs, deeming it not necessary in determining the legal questions involved; we have, however, considered them all, giving full weight to those stressed by appellants; having done so, we are not convinced the court below erred in the conclusion reached.
As to the right of the court to certify a recount of the ballots after the statutory period for an election contest had expired, and after the expiration of the time provided by the statute (3 days) for a decision upon a proceeding to correct palpable fraud or mistake, suffice it to say that nothing prevented appellants from beginning a contest proceeding within the statutory period. A decision within three days after the returns were brought into court was not possible, because appellants did not raise the question of the manipulation of the ballots until that time had expired.
Concerning the circumstance that there were four more ballots in the box than on the voters’ check list, the court below determined that this discrepancy was explainable on the theory that such errors frequently arise by reason of omissions to check or record the names of voters who cast their ballots and concluded this would not warrant throwing out the vote of the entire district and thereby disfranchising 637 voters. We are not convinced there was error in thus deciding.
The assignments of error are overruled and the order of the court below affirmed at appellants’ costs.