137 A. 109 | Pa. | 1927
Argued January 25, 1927. At the November, 1925, election, one auditor was to be chosen for Fell Township, Lackawanna County, for which there were two candidates, viz., Michael Pazdrak and John Wallace. There were four election districts in the township and, on the face of the returns, Pazdrak won. Within the time prescribed by law, however, an election contest petition signed by some fifty-seven persons, purporting to be resident electors of the second district of the township, who voted at that election, was presented and filed in the proper court. After the refusal of a motion to quash the petition, a bill of particulars and an answer were filed and an examiner and stenographer appointed to take testimony. Thereafter, by agreement of counsel, the motion to quash the petition was renewed and, after argument, granted. From the latter order petitioners have appealed. *589
In our opinion it was error to quash the petition. The contest was brought under the General Election Act of May 19, 1874, P. L. 208, section 18 of which (p. 213) provides, inter alia, that, "The petition shall concisely set forth the cause of complaint, showing wherein it is claimed the election is undue or illegal." This and other statutes relating to election contests are enabling in character and must be liberally construed, so as to advance the remedy: Election Cases,
We agree with the trial court that it must appear in the petition that the errors complained of would change the result of the election, but do not agree that the petition in the instant case is fatally defective in that respect. By section 4 of the petition, as quoted in the Reporter's notes, when considered with other averments of the petition, it sufficiently appears that the errors complained of, if established, would change the result of the election for auditor in the township; hence, the question cannot be treated as academic. True, the petition does not set out the number of votes cast in the other three districts, but it does aver that the errors complained of in the second district are sufficient to change the result of the election for auditor in the entire township, which under a fair construction of the statute we deem sufficient. In the language of Judge HAND, In re Contested Election of Beamish, 1 Lanc. Law Review 155: "We do not construe this language [the *591 above quoted clause of the Act of 1874] to mean that the grounds of complaint shall be set forth with every particularity; on the contrary, conciseness is inconsistent with that. To be concise is to be brief, not particular in this sense. Enough must be briefly set out to warrant an investigation, to give the opposing party a reasonable notice of the character of the investigation, and that if successful the result will be changed." The petition in the instant case raises no question as to the regularity of the election in the three other districts and the vote there cast appears in the returns on record and is a matter of formal proof at the trial. As a general rule, it is not necessary to plead the evidence. The real contest being as to the second district, the others are but incidentally involved. Were this a county contest we are not persuaded that the petition must set out in detail the vote polled by the respective candidates in each separate election district, where but a limited number thereof are directly involved in the contest. To do so would be more than the concise statement required by the statute.
Zerby v. Snare,
The petition is verified by the affidavits of the requisite number of petitioners, drawn in the language of the statute. (See section 18 of the Act of May 19, 1874, supra.) The required affidavit is sufficient if made according to the best of affiants' knowledge and belief: Moock v. Conrad,
We have no criticism of the action of the trial court in refusing the proffered amendment. So far as it went to the question of jurisdiction it could not be filed after the expiration of the thirty days (In re Contested Election of Welti (Pa.), 3 W. N.C. 165; Williams v. Johnson (Pa.), 16 W. N.C. 223), and otherwise it was a matter for the lower court's discretion: Ayer's Contested Election,
We have no disposition to relax the rules as to election contests, but deem the instant petition sufficient, under the authorities, although not a model of accurate pleading.
The order appealed from is reversed and the petition is reinstated with a procedendo; costs of this appeal to abide the event of the contest.