234 Pa. 512 | Pa. | 1912
Opinion by
A primary election was held in the tenth district of the eleventh ward of the City of Pittsburgh on January 4, 1910, at which C. G. Elwood and John S. Rodgers were rival candidates for the city and county committee of the Republican party. The name of the former was printed upon the official ballot in the space designated for that purpose, while that of the latter was not upon the ballot, all of the votes cast for him being inserted either in writing or by stickers. The election board certified seventy-eight votes for Rodgers and seventy-three for Elwood. Upon a petition alleging that stickers were improperly used upon certain of the ballots cast for Rodgers, a recount was had, and the Commissioners decided that fifty-seven of these ballots
There were two classes of ballots cast which the appellant contends should not have been counted for Rodgers, and in both printed stickers were used. The first of these stickers read thus: “For City and County Committee. John S. Rodgers. X,” the “X” being in print. All of the ballots in this class were also marked with a pencil “X” in the square printed to the right of the name of Elwood, the letter name being entirely covered by stickers pasted fast over it. The other class had stickers of the same sort attached at a like place, but not pasted fast over the entire name of Elwood; they were merely affixed to the right of the name, so as to obscure totally the official square opposite the same but left partially free so that they might be raised and the name of Elwood made visible. In this latter class it was impossible, without tearing off the stickers, to ascertain whether or not there was a pencil cross in the official square thus covered.
The only directions in the Primary Election Act as to the manner in which tickets shall be marked are found in section 4, which prescribes the form of the ballot, as follows: “Make a (X) in the square to the right of each candidate for whom you wish to vote. If you desire to vote for a person whose name is not on the ballot, write or paste his name in the blank space provided for that purpose.” Here the voters who cast the ballots in question did not adhere to the provisions of the Act or the requirements of the law. They desired to vote for a person who was not on the official ballot, but instead of writing or pasting his name under the proper designation of the office to be filled in the space beneath the printed name of Elwood, they placed a sticker directly over that name; one class making
Section 4 of the Act of 1906 (P. L. 36) provides: “The voter may designate his choice, as is indicated by the instructions shown on the form of ballot above set forth;” this, according to our cases, must be taken to mean that he cannot do it in some other and different way. In Lawlor’s Contested Election, 180 Pa. 566, 570, slips, such as those used in this case, containing the name of a candidate and the designation of an office, were pasted in the blank space for that purpose, and, although these slips in nowise obliterated or obscured the other names or printed matter upon the ballot, the Court held that the vote could not be counted, saying, “The only prescribed mode of voting for persons whose names are not already on the ballot is by inserting their names in the blank spaces prepared therefor. * * It is the name only that is to be thus inserted, not the title of the offices to be filled. The latter is already printed there and constitutes part of the ballot prepared for the use of voters.” In McCowan’s Appeal, 165 Pa. 233, 237, where slips resembling a party column, with names, designations of offices and directions how to vote, were pasted over such a column, the court held the ballot invalid and, inter alia, said: “The name or names, as the case may be, cannot be inserted anywhere * * * * , but only in the appropriate blank spaces prepared therefor * * * * ; it may be done any appropriate way, such as by writing, * * * or by covering the proper blank space, in whole or in part, with a * *
It is true that none of the cases just reviewed was under the Primary Election Act, but cases arising under that statute are governed by the same principles as those under the general election law; in fact the Act of 1900 expressly provides, “Primaries shall be conducted in conformity with the laws governing' the conduct of general elections, in so far as the same are not modified by the provisions of this Act or are not inconsistent with its terms.” Aside from the authorities, to allow a sticker with the designation of an office and a printed “X” upon it to be used, would go far to defeat the important provision of the Primary Law to the effect that “No elector shall be permitted to receive any assistance in marking his ballot unless he shall first make an affidavit that he cannot read the names on the ballot, or that by reason of physical disability
While it may be that the Court in this instance correctly guessed the intention of the voter, yét the fifty-seven mutilated ballots were not marked in accordance with the instructions contained in the Act of Assembly, and under the well established doctrine in this State they should not have been counted; to permit the counting of such ballots would be a precedent fraught with grave dangers for the future. If the designation of the office had been eliminated and a one-line sticker employed, there was ample room for its use in the appropriate place directly under the name of Elwood, and the Court below finds that this space was sufficient in which to write the name of Rodgers, or, with care, to paste the large two-line sticker which was used, without covering or interfering with other printed matter upon the ballot. Under the circumstances, the votes in question should have been declared illegal and not credited to anyone.
The assignments of error are sustained, the decree is set aside and the record is remitted with directions to enter a final decree in accordance with the views above indicated.