228 Pa. 14 | Pa. | 1910
Opinion by
By an order duly entered in a proper proceeding the court below adjudged that P. C. Foy was not the nominee of the Republican party for the office of school director, and directed that his name should not appear upon the ballot as the candidate of that party. Notwithstanding this order the county commissioners had the name printed upon the ballot in connection with the party appellation “Republican.” The name of Foy also appeared in connection with the appellation “Peopled Party;” to which latter nomination he had an unquestioned right. Foy’s opponent was one Gibbons, the nominee of the Democratic and Independent parties. The election officers returned sixty-one Republican and 123 People’s party votes for Foy, and 159 Democratic and sixteen Independent votes for Gibbons; giving Foy a majority of nine. The certificate of election was awarded to Foy. A contest was begun on behalf of Gibbons; and it was claimed that the sixty-one votes returned for Foy as the Republican candidate should be rejected for the reason that his name was illegally upon the ballot
The question in this case is, did the court below, upon the facts shown by the record, draw the proper conclusions and enter the decree required by the statute?
There was no mistake or irregularity in the actual marking of the ballots — with the possible exception of the one with the double mark — but the difficulty arises from the printing thereon of Foy’s name as the candidate of a party that he did not represent. If we regard the appearance of Foy’s name upon the ballot in connection with the appellation “Republican” as absolutely unlawful and void, then it follows not only that all his strictly straight Republican votes should be thrown out, but likewise the fifty votes marked for him individually opposite the appellation “Republican.” This view defeats Foy and gives the office to a man who did not com
The act carries with it the right to the exercise of judicial discretion in deciding the question as to whether or not the ballots used were calculated to mislead the voters; but "'judicial discretion never means the arbitrary will of the judge; it is always a legal discretion to be exercised in discerning the course prescribed by law, and when that is discerned it is the duty of the court to follow it:” 9 Am. & Eng. Ency. of Law (2d ed.), p. 473.
A court ought always to be slow to set aside an election for any office, but when the legislature has ordained that under a certain state of facts it shall so act, and such facts plainly appear upon the record, the duty is clear, and there should be no hesitation about declaring the election invalid. The failure of the court below to decide on the facts presented in this record that “ the ballots used were so defective as to the office in contest as to be calculated to mislead the voters” in regard to Toy’s candidacy and the “parties or policies represented” by him, and that “the defective condition of said ballots may have affected the result of the election,” was in law an abuse of
The court below fell into error in ordering the contestant Foy to pay the costs. Under the Act of April 28, 1899, P. L. 103, in election contests, the trial court has power to-use its discretion as to whom it will charge with certain of the costs when the time consumed in taking testimony exceeds ninety days; but there is nothing in the present record to show when the taking of testimony commenced or how. much time was thus consumed. The liability for the costs in this case is provided for by the Act of April 28, 1899, P. L. 118; and thereunder, when the contestant fails to establish his right to the office in question, the petitioners must pay the costs: Thirty-eighth Ward Election, 35 Pa. Superior Ct. 256.
The third assignment of error is sustained; the decree is set aside; and the record is remitted so that the court below may enter a proper decree declaring the election for the office in question to be invalid, as provided in the act of April 14,1897, and as indicated in this opinion. The costs to be paid by the petitioners.