*1 are subjects suscep- all kinds of tax the other While it true classification.” is just proper tible of be a the tax in that case held to property tax, v. (page said Kelley Kalodner, we yet, supra, Justice quoted : “the of the then Chief 190) language character as to all-embracing require above is in its so Furthermore, Blauner’s, serious consideration.” Ine., v. declared unequivocally we Philadelphia> supra, Tax there under City Sales Ordinance, consideration, excise tax and such tax must be uniform. was an Since are equality uniformity so principles imbedded Constitution of this Common- firmly wealth and our have no alternative but decisions, we Tax to declare the “Store and Theatre Act” violation article IX, Constitution of Pennsylvania. it is consider Therefore, unnecessary to appellees’ objection that this statute also in conflict provisions with other State Federal Con- stitutions.
Decrees costs affirmed; paid by appellants. Mr. Justice Stern concurs result. Appellants, Ewing.
Oncken et al., *2 Argued September 1939. Before C. J., Kephart, Schaefer, Linn, Stern JJ. Barnes, E.
George for appellants. McWherter, Charles C. him Howard H. Whitehead with Crowell, Dan V. for Crowell, appellees. 1939: Per Curiam, September 8, Decree affirmed at appellants’ cost; opinion filed later.
Opinion by Mr. Justice Stern, September 1939: The Act of P. L. April as amended 26, 1929, the Act of P. L. May 22, that when- 838, provides ever constitutional amendment or question other submitted to the vote of the electors it shall be printed upon the ballot form in brief and shall be followed and “no” with appropriate squares for the insertion of cross mark. special
At a election on November there was presented the electors of the Borough Arnold, Westmoreland County, question whether become city third class. The official ballot prepared by Commissioners and County the election was as follows: IN
TO VOTE EAVOR OE MARK THIRD WORDS-“EOR CITY, CLASS A CROSS (X) THE OPPOSITE CHARTER.” CITY VOTE TO AGAINST CITY, (X) THIRD MARK A CLASS “AGAINST CROSS OPPOSITE THE CHARTER.” WORDS CITY *3 1306 against for the charter and The vote 1788 was filed a in bill of the borough, electors it. Plaintiffs, Quarter of of the Court the Clerk that equity praying the certifying from county enjoined of be the Sessions the Common- Secretary of the election to the of result null and void. be that election declared the wealth, the bill. The court dismissed the rests absence case upon
Plaintiffs’ Defendant official ballots. from the “no” “yes” in an such required the form of ballot that contends 1933 of 1929 and not the Acts is governed, City the Third Class Law but to, referred previously L. provides P. section which June 23, of in a cross-mark designate with shall electors that the their desire to for the ballot vote on the squares one of makes but no city charter, pro- a third-class against or fur- and “no.” Defendant for the words vision acts were those if the applicable even that argues ther not did the ballot was 1933 1929 of their substantially requirements; from deviate the to pass upon legality no jurisdiction has equity if plaintiffs thought finally, and, election; an of sought have they defective ballots were correction election. before 15,* pro P. L. Act June
The of upon may, ap common pleas the court of vides that require county any elector, of qualified plication omission mistake or correct any commissioners to Knight Coudersport In the ballots. printing controls the Pa. 284—a decision which Borough, a court of made to case—an was have present attempt an increase authorizing an election set aside equity complaint being of a borough, indebtedness kind of paper not printed the ballots were on held since that, act It assembly. was required by ascertained have readily interested could person any election and before the the ballots imperfection under this section the defect remedy have proceeded the election to too late of the Act of 1893, it after It was ground. pointed to invalidate on that seek it re and adequate offered complete out that the statute failed to avail themselves having lief and, plaintiffs disenfranchisement undue it, would election aside. later to set the electors were the court lack : “When a ballot is not 290) The court said (p. to a free stat expression matter essential ing any the absence of form the will of voter, utory *4 remedy completeness and fraud, applicability to require seem so clear as under the Act of 1893, supra, under and conclusion that, no further discussion; election should not be at bar, the circumstances by our own is fully sustained, principle, set aside, cases.” juris- American established generally throughout
It is does not utilize the opportunity dictions that who one object irregularities statute to to afforded ob- not afterwards raise may ballot before the be and indeed thereto. It jections unjustifiable, would * substantially 1010 of the reenacted This section was P. L. 1333. Code of June Election has clearly expressed after the electorate intolerable, its null and for a court to declare an election void will, because defect merely inconsequential of some form the law especially ballot, where, here, furnishes a to elector method neces- every whereby the sary correction be For made to the election. may prior under such to be allowed to with- voter, circumstances, hold complaint his until he learns the election has resulted his his unfavorably to views or candidates unjust would be as as to challenge to permit litigant an adverse verdict because of some' technical flaw the trial as to he had which, with chosen knowledge, to remain silent. ^
The invalidation of judicial election is a public justified act of serious and is import, circum only by stances the most nature. Of compelling there course, be may cases where there has been fraud deliberate on part of election or where a statute ex officials; that certain provides or pressly mistakes defects the ballots invalidate the shall or where some election; fundamental preliminary the election been ig has Nyce as in v. Board nored, 319 Pa. Commissioners, 353; where, or as in Club’s Kittanning Country Liquor License 330 Pa. the form of the ballot is so Case, in conformity with the lacking law and so confusing voters cannot intelligently express in tentions in; such instances it may proper neces for a court to sary election. nullify But where irregularity complained of could not reasonably have misled voters did not result question at being presented issue to them the elec unintelligibly, tion cannot be overturned judicially because of some from innocuous deviation a statutory requirement which might have been rectified previously resort through the remedy by the law for given As purpose. said in Bowers v. 111 Mo. Smith, S. W. 45, 20 101, quoted in Black on Interpretation Laws, p. from *5 latter in Knight Coudersport the Borough, supra,
48 ex rel. Gast v. Pa. Kelly, Commonwealth
again 273 Pa. 410, 415, 416, Election, Fish’s 301 Pa. Election Returns, in Luzerne County a irregularity “If law itself declares specified 257: the irre command, the follow that courts will fatal, importance require of of the spective views the In the of declaration, judiciary ment. absence such to discern the devi best they may, as whether endeavor, or had from the forms prescribed had, not, ation of law an influence on the as proceedings probably so vital full expression free and of the popular a prevented it is held vitiate the irregularity If the to had, will. return; entire it is considered otherwise, immaterial.. . de every slight It does not . . follow that ... of the the election parture provisions [from laws] a blemish. proceedings taint the whole with fatal Courts consider chief of justly purpose the such laws, namely, fair election and honest obtaining return, to the as minor paramount importance requirements formal to reach that prescribe steps end; in order defeat fre not to main are design, and, led to such innocent quently ignore irregularities officers free of fraud not in election as are and have expression terfered full and fair of the voters’ with choice.”
The ballot here under considera- readily tion was and the comprehensible, “no” would not have added to Their clarity. its omission constituted so from the negligible departure if the Acts even of 1929 and prescribed form, as it unnec- accepted governing statutes, —which decide —that essary infringe upon to would gravely the electorate for the rights nullify court request of their since the expression will, especially is made had who, they electors really regarded alleged might defect important, readily so have availed themselves remedial provisions statute.
The decree is affirmed at cost of appellants.