Pfaff v. Bacon , 249 Pa. 297 ( 1915 )

Opinion by

Mr. Justice Potter,

This appeal is from the final decree of the Court of Quarter Sessions of Philadelphia County declaring Philip H. Moore elected select councilman of the City of Philadelphia from the forty-fourth ward, at the election held November 4,1913. The official count of the election made it appear that for the office of select councilman, Philip H. Moore received 2,506 votes and William D. Bacon received 2,513 votes. Upon a petition duly filed alleging error in the count, the court appointed an examiner, and instructed him to open the ballot boxes containing the ballots cast in the seven divisions of the ward which were specified in the petition. The result of the recount to this extent* was to show the apparent election of Moore, by a plurality of 29 votes. Afterwards upon the petition of the respondent, the examiner was directed to open all the ballot boxes in the ward, which had not already been opened and reported upon, and it was ordered that the ballots therein, so far as they related to the office of select councilman, be recounted by the examiner, and report made thereon to the court. The result of the recount apparently gave Moore the election by a plurality of thirty-seven votes. Exceptions to the examiner’s report, filed both by the petitioners and the respondent, were dismissed, and the court made an order confirming the report of the examiner and adjudging that Philip H: Moore was duly elected select councilman for the term beginning the first Monday of January, 1914. The respondent, William D. Bacon, has appealed, and his counsel have filed thirty-two assignments of error. With the exception of the first one, they are all defective, for the reason that they do not in any case, set forth any order of the court below, or any exception to the examiner’s report, or to the action of the court. All the matters alleged to have been found, dismissed, directed, etc., by the court below, are stated in the language of counsel, and not in that of the court. No reference is made to any page of the appendix, where the matters which are the subject of the assignments may be found. In Markleton Hotel Co. v. Connellsville & State Line Ry. Co., 242 Pa. 569, where counsel erred in the same way, Mr. Justice Moschziskeb, speaking for the court, said (p. 572): “All the specifications of error excepting the first, which goes to the final decree, are defective in form, since in each instance they fail properly to show the action of the court below on the exception referred to in the particular assignment. We have taken occasion in several recent cases to point out that under our equity rules each assignment of error must be self sustaining, that is, it must show the exception taken in the court below to the ruling complained of, the action upon the exception—in totidem verbis—and the ‘pages must be stated where the matter referred to is to be found in the paper books of appendix.’ (See Prenatt v. Messenger Printing Co., 241 Pa. 267, and cases there cited).” And again in Ridgway v. Philadelphia & Reading Ry. Co., 244 Pa. 282, Mr. Justice Elkin said (p. 283): “This appeal might very well be dismissed on the ground that the assignments of error are not in proper form under our rules. They do not set out in the words of the court the order sustaining the demurrer or the judgment from which the appeal was taken. We have had occasion to say in several recent cases that an assignment is not sufficient which simply avers in the language of the counsel that the trial court erred in respect to the matter about which complaint is made. The assignments must set out in the exact language of the court, the judgment, decree, order, instruction, or other matters alleged to be erroneous in the trial of the case, or the disposition made of it.” In the present case, however, the first assignment of error is to the final decree of the court below, and all the questions raised by appellant, except the first one, may be considered under that assignment. The first question raised by appellant is whether the court may order the opening of the ballot boxes upon a mere petition alleging fraud, mistake, or irregularity without first requiring proof of the matters alleged, and whether the examiner may recount the ballots without proof that they are the actual ballots which were cast by the voters and counted and returned by the election officers. In considering this question it will be noted that the record here does not show that any exception was taken to the order that the ballot boxes should be opened. That order was merely interlocutory, and [therefore the Act of May 11,1911, P. L. 279, Sec. 6, does not apply: Com. v. Bonner, 238 Pa. 339; Kane & Elk R. R. Co. v. Pitts. & Western R. R. Co., 241 Pa. 608. Furthermore, although the petition expressly prayed that the ballot boxes should be opened, appellant made no denial in his answer, of the power of the court to order them to be opened and the votes recounted. In addition to this, after the ballot boxes for seven districts had been opened and the ballots counted, appellant himself presented his petition asking that the ballot boxes for the remaining districts of the ward should be opened and the votes counted, which was ordered by the court to be done. This may therefore fairly be regarded as a waiver of any right'that appellant may have had to object to the original order. Aside from this, the application to open the ballot boxes, was addressed to the discretion of the court below, and there is nothing in the present case to show any abuse of that discretion: It is further suggested by counsel for appellant, that even if it was proper to order the boxes to be opened, yet the examiner should have demanded preliminary proof that the ballots were the same which were cast, counted and returned at the election. There was proof that the boxes were those delivered on the night of the election to representatives of the prothonotary and mayor, as required by law, and that they had been safely kept in the proper place, until brought from there upon the order of the court, and delivered to the examiner. The fact that the boxes were produced from the proper custody was prima facie proof that the ballots therein contained were those cast at the election. There is neither allegation nor proof that any of these boxes were tampered with, or that the ballots were not identical with those cast at the election.

It appears that the. ballots used at the election contained a column in which were printed, as prescribed by the Non-Partisan Judiciary Act of July 24, 1913, P. L. 1001, the names of all the candidates for the office of judge in various courts. At the foot of this column were the nominees for the Philadelphia Municipal Court, and following their names was a blank space for the insertion by the voters of other names. In that blank space a number of voters pasted a pink slip or “sticker” containing four names. It is contended by counsel for appellant, that the use of these stickers vitiated the ballots on which they were pasted. The acts of June 10, 1893, P. L. 419, Sec. 14, and of April 29, 1903, P. L. 338, Sec. 2, and July 24, 1913, P. L. 1001, Sec. 16, all provided that on the official ballots blank space should be left for the “insertion” of additional names, and that the voters may “insert” such names. It. was. held in DeWalt v. Bartley, 146 Pa. 529, that such names -may be inserted by means of stickers. And in McCowin’s App., 165 Pa. 233, where the Act of 1893 was under consideration, Mr. Chief Justice Sterrett said (p. 237):. “The manner of inserting is not prescribed.- It may therefore be done-in any appropriate-way, such as by. writing, stamping with metallic or rubber stamp, or by covering the proper blank space, in whole or in part, with a slip ticket or sticker, securely attached to said space by adhesive paste or other suitable material, on which ticket or sticker is printed or written a name or names, ‘not already on the ballot.’ ” Clearly the use of the sticker in the present case did not in itself, invalidate the ballots, but going beyond that, it is contended that the pronounced color of the sticker here used, rendered the ballots void. Section 15 of the Act of 1893, requires that the ballots should be printed “upon white paper without any impression or mark to distinguish one from another.” It is clear that the printing of the ballots on pink paper, either in whole or in part, would be in violation of the statute. The same would be true if some of the ballots were printed on white and others on pink paper. The difference in color would “distinguish one from another.” A large pink sticker, such as was used in this case, when pasted on a ballot, distinguishes that ballot very perceptibly from one containing no such sticker. True, the stickers were put on.by the voters, but in Sec. 36 of the Act of 1893, it is made a misdemeanor for a voter “to allow his ballot to be seen by any person with the apparent intent of letting it be known how he is about to vote/’ and it seems to us that the use of a sticker printed upon pink paper, such as is here shown, would lend itself readily to a violation of the provision of the law just cited. Its size and color enable it to be readily seen and distinguished from a. distance, and it is in such marked contrast to the white paper upon which it is pasted, that it shows through upon the other side of the paper. For this reason we cannot agree with the statement of the examiner that the color of the sticker is unimportant. It should correspond reasonably with the color of the paper in the ballot, in order to avoid becoming a distinguishing mark. In the present case no reason is apparent why a sticker showing so marked a difference in color should have been used, unless it was intended in that way to distinguish the ballots upon which they were used. We do not feel, however, that it is necessary to place our decision on the ground that the 465 ballots containing these pink stickers are invalid, and to be excluded from the count, but we express the view that the practice of using such stickers is too near the prohibited line, to be commended, and it should not be continued.

Another question raised by counsel for appellant gives us more concern, and that is, whether ballots marked with a cross in the straight party square, and then marked, not for all the candidates of that party, but only for certain individual candidates of that party, (a) including contestant, and (b) not including contestant, should be declared void. As an instance, Exhibit C, shows a ballot in which a cross is marked in the Democratic party square, and in which crosses are marked for the names of the Democratic contestants for district attorney, register of wills, state treasurer, and select council. There are no crosses after the names of candidates for the remaining offices on the ballot. The same markings are found upon Exhibit B, except as to select council. Exhibit E is marked in the same way as Exhibit C, except that the marks are in the Washington party square, and for the Washington party nominees, instead of the Democratic. The precise question here raised does not seem to have been before presented to our appellate courts. It has been held that a voter may not mark a cross in the party square, and then erase the name of one of the candidates of that party, and make a second cross after the name of the candidate of another party, for the same office: Newberry Township Election, 187 Pa. 297 Dailey’s App., 232 Pa. 540. In the latter case, Mr. Justice Stewart said (p. 542): “Under the earlier act (Act of June 10, 1893, P. L. 419), a choice of methods was allowed the elector when he came to prepare his ballot, notwithstanding the employment of the word ‘shall’ in that connection. To vote a straight party ticket he could either place a cross mark in the circle above the party designated, or, no matter how many names of candidates appearing thereunder, he could accomplish the same result by placing the mark opposite the name of each. This much we have repeatedly ruled. The employment of the word ‘may’ in the amending clause, gives no larger privilege in this regard than the elector enjoyed before; he may still employ either method with like definite results as before; he may adopt both without invalidating his ballot, but Avhether he adopt either or both, he has exhausted his privilege; and if having done this, he mark within the square opposite the name of a candidate for an office, for which the party of his choice has nominated another, it is an attempt to vote for tAVO candidates for an office to which one only is to be elected, and the ballot is nullified.” In the present case the examiner and counsel for appellee rely on the expression of our Brother Steavart “he may adopt both Avithout invalidating his ballot” as sustaining the validity of the ballots here in question. The statement, however, evidently meant that the voter may make a cross in the party square, and then if he chooses to do so, may also make crosses in every one of the squares opposite the names of the candidates of the same party. If a voter did this his intention would certainly not be in doubt, and there would be no difficulty in counting the vote as he intended it. But in the case at bar, it is not possible to say with certainty what the voters intended, when they marked their ballots, with á cross in the party square, and also marked crosses after three or four only of the names of candidates of their party. Did they intend to vote a straight party ticket? If so, why mark the names of certain individuals? Is that action to be taken as an indication that they intended to vote only for the individuals whose name they marked? If so, then the mark in the party square is invalid and without force, and carries no vote for the other offices on the party ticket. We can only guess as to what the real meaning of these voters was. It should be borne in mind that the acts of assembly provide for two meth¡ods of voting. The first method being for use. where the voter, desires to vote for all the candidates of a particular political party. In such case his wish is most easily expressed by placing a cross mark in the party square. The second method is where the voter desires to vote for particular candidates. In such case he follows the method of placing cross marks after individual names. The clear and simple rule is to regard these methods as mutually exclusive. This is in accord with what seems to be the established doctrine of our cases which is that when a voter has placed a cross in the party square, which means a vote for all the candidates of that party, he has “exhausted his privilege of voting”: Gearhart Township Election, 192 Pa. 446 (451). In such case no further marking is allowed, unless as was indicated in Dailey’s App., supra, the voter wishes to mark the names of all his party nominees, or where as in Gearhart Township . Election, there are two officers to be elected and only one name is printed in the party designation, then the voter may vote for the candidate of another party. In Redman’s App., 173 Pa. 59, Mr. Justice Sterrett said (p. 64): “Under the new ballot law, it is not enough that the intention of the voter may possibly be ascertained, or his irregular and equivocal acts explained by evidence dehors his ballot. The purpose of the legislature, in prescribing the form of ballot and specifically directing how it should be prepared and used by the voter, was to avoid all such inquiries and the consequences likely to result therefrom. It was intended that the ballot, when prepared by the voter and delivered to the proper election officer, should be per se self-explanatory. There is no good reason1 why it should not be so.” And again in Rodgers’ Contested Election, 234 Pa. 512, we said (p. 519.): “While it may be that the court in this instance correctly guessed the intention of the voter, yet 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.” In the present case, if we follow the principle that the methods of placing a mark in the party square, and of placing marks after the names of particular candidates, are mutually exclusive, then the ballots marked in the manner above described must be held invalid, and it follows that ninety-eight votes counted by the examiner for Philip H. Moore, should have been excluded from the count. Of those ballots twenty-five were marked with a cross in the Democratic party square, and marks were also made in the square opposite certain Democratic candidates, including Philip H. Moore. Twenty-one ballots were marked in the same way, but not including Moore. Twenty-four ballots were marked with a cross in the' Washington party square, and were also marked in the squares opposite certain Washington party candidates, including Philip H. Moore. Twenty-eight ballots were marked in the same way, but not including Moore. Making a total of ninety-eight ballots in all, marked in the party square and also in the squares after a few of the names of individual candidates. For the reasons above given, these ballots cannot be counted. The result will be to more than overcome the changes in the official return, which were recommended by the examiner, and to confirm the election of the appellant. While the figures as to these totals are not given in the examiner’s report, yet their correctness is not disputed by counsel for appellee.

Another question raised on behalf of appellant is as to whether the intention of the voter may be inferred, when a cross marked in the square opposite the name of the .candidate is smudged or partly obliterated. It is apparent in this, case, that in the ballots referred to, the voters made an error in marking, by placing the cross in the wrong square and then undertook to erase it. The intention is plain, and there is no good reason why these ballots should not be counted. Counsel for appellant also raise the' question, “Whether ballots márked by the voter with a numeral in lead pencil in the margin are valid.” As to this feature, however, the examiner reported that these numbers were not upon the ballots when they were cast, or when the boxes were first opened and the votes counted. This finding of fact must be accepted as true. If the ballots were not thus marked by the voters, their rights cannot be affected by the subsequent acts of other persons in marking the ballots.

In the argument of counsel for appellee we are reminded that this case must be considered only as having been brought up under a writ of certiorari. In a contested election case, however, we are not limited to a formal examination of the record, but are at liberty to review the conclusions of law and the decree entered by the court below: Krickbaum’s Contested Election, 221 Pa. 521; Von Moss’s Election, 219 Pa. 453. In Foy’s Election, 228 Pa. 14, it was said (p. 17) : “It has been repeatedly ruled in our recent decisions that in election cases we can get the facts from the record and the opinion of the court below. When the facts are ascertained, we have the right to correct all erroneous conclusions, judgments, or decrees based thereon: Babcock v. Day, 104 Pa. 4; Woodward v. Carson, 208 Pa. 144.”

Our examination of this record leads us to the conclusion that the examiner mistakenly included in his count, ninety-eight votes for Philip H. Moore, and that the court below erred in confirming his report in that respect. As a result of the correction of this error it appears that the respondent received a plurality of the votes cast for the office of select councilman from sáid ward. It is therefore ordered and adjudged that the decree of the Court of Quarter Sessions be reversed, and set aside; and it is further ordered that the petition be dismissed and that the costs both in the court below and here, be paid by the petitioners.

May 3, 1915: