*1 535 166 Pa. Pittsburgh, Bruce v. 31 Pa. 175 (1854); Northumberland Trust Co. v. A. 831 Phila. (1895) ; 30 (1917); A. 970 101 Traction 258 Pa. Co., County v. Wino & Loan Association Building Beaver County cited cases (1936), Pa. 481 wich, in that opinion. order formal filed pursuant

This now opinion 5th. January case on made costs shall decree; form of present Counsel will defendants. be paid Opening Third Election

In Box in re Ballot Philadelphia. Forty-First Ward, District, Before Maxey, November Schaffer, Argued 26,1937. Stern JJ. Barnes, Linn, Drew, *2 Marshall H. him Morgan, with Hubert J. Horan, Jr., William A. Draper and D. Thomas McBride, appel- lants.

Thomas J. with him Minniclc, Richard T. McSorley, appellees, candidates nominated office, by Democratic Party.

G. Brewster him Rhoads, with Lemuel B. Schofield, appellees, candidates judicial nominated office, by Democratic Party.

Pee November 1937: 29, Curiam, The court is of the opinion that the order of the court below should be affirmed. An opinion will written later.

Order affirmed at appellants’ cost. by Opinion Mr. Justice Schaefer, January 1938: here question presented involves the of certain sections of the “Pennsylvania Election Code” approved June P. L. 1333.

We have heretofore handed an order down confirming the action of the court below counting disputed ballots in the it did. This is written so way opinion that onr reasons for the conclusión reached stated. of decision in order that the election Urgency count of an might proceed opin- prevented preparation ion our when order was made.

Appellants’ counsel state the involved thus: question Where, in instituted under section 1701 proceedings the Pennsylvania Election a ballot box is Code, opened and the ballots contained therein are counted shall a (x) with a cross court, op- the name of one of posite political parties one or more cross and also with marks opposite the name or names of individual candi- dates of the same or another be counted *3 the candidates so marked? individually

The court in below answered the and counted negative for the ballots as a vote each candidate individually as vote for each of the marked, also, a candidate in marked the political party party column, except as the office or offices for the individual or which candidate candidates had been so marked.

For the that so-called position, “split” ballots are to be counted for individual candidates only ap- marked, pellants’ counsel subsection rely upon (b) of section 1223 of the act reads: “At which November elections, a mark in the name of square opposite political or in party political body shall be counted as a vote for candidate of that or so body marked, its for including candidates for those presidential offices as to which electors, except the voter has indicated a choice for individual candi- dates in of the same another office body any in case the ballot shall block, which be counted only individually candidates thus notwithstand- marked, the fact that the voter has made a mark in ing the party and even in the case of an though office column, more than one candidate to be voted has number not marked for office the full suck of for which he is entitled to vote.” candidates

We do of the not construe section act as appel- this con- lants have its declared. Its meaning proper would struction in those instances which an elector has is, marked and has also square, number office than full candidates less of block, entitled to as for vote, which he is where instance, three court be elected the voter judges are to has marked in the and then marks one of party square, of that other judge any individual in the notwithstanding his mark party square, shall not be counted for all the candi- judicial vote but for the one For all individually marked. dates, only other of- candidates of the that party, except those fice block While language his vote shall counted. might is not as clear as it think be, section we from have it given necessarily we follows “in refers used. which case” language phrase “in office any to the antecedent word block” and the read “in ballot should be office block the words shall be counted thus individ- ually marked.” one

When read the of this meaning other sections are becomes Thus section beyond peradventure. clear *4 Bal- Official 1003 under “Form of Election the subtitle “(a) lot” The official ballots general it is provided in substantially shall be elections municipal and special form: following BALLOT OFFICIAL of....................County ......District......Ward, City Pennsylvania. State of of.................... the..........day 19.. held on ........Election of............. any square opposite candi- (x) the name of in the A cross mark for that vote candidate. date indicates a (x) square, ticket, straight party cross mark To vote a your Column, opposite party of name of the Party in the party after of another individual candidate To for an choice. vote (x) opposite his square, a cross making party a mark in the For more than candidate is to be voted name. an where one office for, voter, may marking party square, divide his after by marking (x) right candidate for vote to each a cross or shall not be whom he she desires to vote. For such office votes individually marked.” counted candidates not thereby voting The voter is after informed, that straight party by marking square ticket, a cross party may in the he vote for individual can- an column, implies party. didate of another Of this that his course shall be counted for all of the vote except the candidate for as to he an office has voted he for another. Furthermore is told officewhere more one is to than candidate be voted for, may marking party square after in the he divide his vote by marking right a cross of each candidate square he whom desires to but his vote will vote, not be so far as that office counted, concerned, implying candidates not that it marked, be counted for all others. will (c) provides: Subsection of section 1215 “At elec- prepare the elector tions, ing shall ballot follow- may manner: He vote the candidates of his according choice for to each office filled to the num- persons by ber of voted for him for each office, making (x) square opposite a cross mark in the may by writing, name of the or he insert candidate, stamping space provided in the blank sticker, there- already printed name not on the ballot, making such insertion count shall as a vote without the (x) every a mark. If he desires to vote for political party political body, except candidate of a its candidates for officesas to which he votes for indi- provided, vidual in the manner hereinafter (x) square opposite make a cross mark in the political body the name of of his choice on the left of the equivalent such cross mark shall be to and be count- *5 every political as ed a vote for a candidate of for presiden- its candidates body marked, including so he has to which except tial for those offices as electors, of the same candidates indicated a choice individual marking a body, by another political in the manner herein- their names opposite to offices his ballot shall be above as which provided, has indi- counted for the candidates which he thus only he made the fact that notwithstanding vidually marked, even in case though a mark and party column, of office for more than one candidate is to be which has not marked for such office voted he full number of candidates for he is entitled to vote.” telling

It would a after strange anomaly, if, if ballot, elector to desires to prepare how he a vote for candidate of its every political party except he offices as to which votes individual candidates he make mark in a cross the square op- the name of the column on posite left of the and such cross mark shall be counted a candidate of ex- as vote so party marked, cept those as which has marked for indi- offices and that his ballot shall be counted such viduals, for the individually marked, offices statute a provide section, should that al- subsequent he had marked as and been though directed, assured that his vote so marked would be counted for all other it not be. candidates, would

Moreover are now we giving act is in the law it harmony with as was when the code adopted P. L. (Act July 9, 1919, was Sec. 1, PS sec. 281 Pa. 1883), Gegg’s Election, rationally it unsupposable would that the legis lature intended such change sweeping the manner as contend voting appellants unless the intention to make the was manifest change clearly code. new being general code therein revision, law writ ten will be deemed the same as it prior was to revision

541 evidence the absence of clear intention it: Miles’s 272 Pa. A. change 300; Gordon Est., 329, 116 v. Continental A. Cas. 319 Pa. Co., 574. 555, 181

It should be of this pro- stated that our consideration for our re- ceeding not to be considered a precedent election Pa. view of counts. See Smith’s Petition, 292 A. Re- Election Springdale Township 854; Con- Pa. 73. See also Rimer’s count, tested 316 Pa. 342, 175 A. 544. Election,

The order of the court is affirmed at appellants’ below cost. v. General Accident & Fire Assurance

Dickey Life et al. Corporation, Ltd., Appellant, Argued December Before 2,1937. Schaffer, Maxey, Linn, Stern JJ. Drew, Barnes,