45 Pa. Super. 639 | Pa. Super. Ct. | 1911
Opinion by
By the return filed in the office of the clerk of the court of quarter sessions by the election board of the east ward of the borough of Gilberton, it appeared that John T. Morgan and William Terrill, the two opposing candidates for the office of assessor, each received 169 votes at the election held on February 15, 1910. The overseer appointed by the court under the Act of January 30, 1874 P. L. 31, made a special report, which was filed on the same day as the return, in which he explained his omission to sign the return, by saying that two ballots were rejected from the count, which, though marked wrong for the office of councilman, “should have been counted for the assessor.” The judge of election sealed up these two ballots and filed them with the return. It appears, by inspection of the copies thereof printed in the appellant’s paper-book, and it is conceded by his counsel in his history of the case, that they were properly marked for John T. Morgan. Twenty-seven days after the election he filed his petition, setting forth the facts, alleging that because of improper marking of these two ballots for the office of councilman the election board, by mistake and through a misunderstanding of the law applicable to such cases, rejected the ballots for all offices, and praying that the court take cognizance of the special return made by the overseer and the ballots returned by the judge of election, to the end that the two votes be added to the return of 169 for the petitioner. Upon this petition the court granted a rule to show cause why the return should not be modified and the two votes be counted for Morgan. The election
Section 27 of the Act of June 10, 1893, P. L. 419, as amended by sec. 4 of the Act of April 29, 1903, P. L. 338, provides, inter alia, as follows: “If a voter has marked his ballot otherwise than as directed by this act, so that for any reason it is impossible to determine the voter’s choice for any office to be filled, his ballot shall not be •counted, for such office; but the ballot shall be counted for all other offices for which the names of candidates have been properly marked.” It follows that these two ballots ought to have been counted and returned for Morgan; and if this had been done the return would have shown that he had two majority. No doubt the election officers acted honestly; but it cannot be denied that they made a grievous mistake, which there ought to be some mode of correcting. It is argued by appellant’s counsel
The appeal is quashed.