In re Recount of Ballots in 1st Ward, Braddock.

Primary Election-Candidates Not Appealing-Fraud-
Vote.

-Rejecting the Whole

Where at a primary election it has been found on the appeal of one candidate that fraud was committed in the conduct of the election, and the vote has been rejected as to that particular candidate and his appeal is sustained, the court will, in a case where "right and justice may require," reject the vote as to all the candidates of the district.

Where fraud has been found, no reason appears why the result of the return of the primary should stand as to the local candidates any more than those for county offices.

While the Act of 1913 does not require notice to all the candidates of the proposed action to reject the whole vote as to all candidates and for all the offices, it is proper practice that such notice be given.

Sur petition of John Sivetz et al., and petition of F. T. Redman et al. No. 1794 October Term, 1915. C. P. Allegheny County.

George E. Alter, A. T. Morgan, J. D. Douglass and Edward J. Smail, for' petitioners.

SHAFER, P. J., and EVANS, J., October 28, 1915.-When the opinion was filed in this case no mention had been made, during the argument or otherwise, of any local contests for Republican nominations in the Borough of Braddock or in the First Ward of Braddock. It was well known and admitted by all that no nomination for any county office on the Republican ticket could be affected by any particular disposition of the case except that of Prothonotary. An order was therefore made that the Commissioners should not count the vote of this ward for Prothonotary.

Our attention is now called, by these petitions, to the fact that there were candidates for the Republican nomination for local offices and that the result of at least one of these would be affected by the disposition made of the vote in this ward. While no notice to any particular candidate is required by the Act, we have thought it proper that notice should be given of this application to all candidates who would be affected by it, which notice appears to have been given. It was suggested on the argument of the present motion that as there was no appeal by any of the local candidates an order ought not to be made affecting them. If this proceeding were a mere contest between candidates this would be true. That is not, however, the essential nature of this proceeding. The petition on which the ballot box was opened was on its face not in the interest of any particular candidate, nor does the law intend that it should be so. When the ballot box was opened and a recount made Mr. Kirker, who was a candidate for Prothonotary, and some at least of the original petitioners, appealed. It is not necessary now to decide what is meant in the Act by "a person aggrieved." There can be no doubt that Mr. Kirker was a proper appellant, and it cannot be claimed that there should be a separate appeal for each candidate. On an appeal the Court is directed to hear and determine all matters pertaining to any fraud or error committed in the district, and to make such decree as right and justice may require. The fact that an order has been made as to one office furnishes no reason why a like order should not be made as to others, when right and justice require it. No reason appears why the result of the return of the primary should stand as to the local candidates any more than those for county offices.

It is admitted on all hands that the rejection of the return in this case would not affect any candidate for county offices except that of Prothonotary, which has been already disposed of. It does not seem that right and justice require any order to be made in regard to those offices.

In re Recount of Ballots in 1st Ward, Braddock.

It is therefore ordered that the Commissioners in counting the votes for the Borough of Braddock and the First Ward of the Borough of Braddock, for local offices, reject the whole of the return from the First Ward.

Injunction-
Evidence.

Rossiter vs. Woods, Secretary of Commonwealth.

-Non-Partisan Ballot-Vote for Judge-Municipal Officers

A candidate for judge on the non-partisan ticket who received a vote of 7,759 as against 6,881 votes for his opponent out of a total non-partisan vote of 14,644 is not entitled to be placed on the ticket as the sole nominee, when the votes for municipal officers amounted to 18,358 votes. The law requires a sole nominee "to have received a vote greater than one-half of all the ballots cast in the district." The person claiming this statutory privilege must establish the statutory conditions by the weight of the evidence. Ballots cast in the municipalities are not to be deducted from the total number cast in the district.

In Equity. Bill to enjoin defendant as Secretary of the Commonwealth from certifying the name of Joseph M. Force as a candidate for Judge in the Sixth Judicial District, composed of the County of Erie. No. 554 Equity Docket. C. P. Dauphin County.

Charles H. Bergner and J. E. B. Cunningham, for petitioner.

Francis Shunk Brown, Attorney General and William M. Hargest, Deputy Attorney General, for respondent.

MCCARRELL, J., October 19, 1915.—The plaintiff and Joseph M. Force were candidates for nomination as Judge in the Sixth Judicial District, composed of the County of Erie. At the primary election September 21, 1915, the total number of votes cast in said district for non-partisan candidates for judicial nominations was 14,644, of which number Uriah P. Rossiter, the plaintiff, received 7,759 votes, and Joseph M. Force received 6,881 votes, four additional votes being cast for other candidates. The 13th section of the Act of July 24, 1913, P. L. 1001, provides that "whenever at any primary any candidate for nomination to any of the aforesaid offices to which but one person is to be elected at the succeeding election, shall receive a number of votes, greater than one-half of the total number of votes cast for such office at such primary and greater than one-half of the number of ballots cast in the political district or division within which the nomination is to be made, such nominee shall be the sole nominee for such office; and his name, and none other, shall be printed as candidate for such office upon the official ballot for use at such succeeding election."

Under the provisions of this section the plaintiff claims that he is entitled to have his name printed upon the official ballot for the succeeding election as the sole nominee for the office of Judge. The defendant has demurred to plaintiff's bill, thus admitting all the material facts in said bill alleged, but claiming that plaintiff is not entitled to the relief claimed. The total number of votes cast for the office of Judge was, as before stated. 14,644, of which the plaintiff received 7,759 votes as against the 6,885 cast for all other candidates. Thus it appears that the plaintiff has met the first condition for obtaining the statutory privilege of having his name printed upon the official ballot as the sole nominee for the office in question. But it is claimed that plaintiff has not "received more than one-half of the number of ballots cast in the political district or division within which the nomination is to be made." Ths claim is based upon the return of the County Commissioners which states "that the total number of voters who received ballots, and voted at the said primary election held on Tuesday,

Rossiter vs. Woods, Secretary of Commonwealth.

September 21, 1915, in the said County of Erie, was 18,358. This includes the ballots cast for municipal candidates for Erie and Corry, third-class cities within this district. It further appears from the Commissioners' return that three distinct forms of ballots were used at the election in question, as follows, viz:

1. "The party form of ballot containing the several party offices."

2. "A non-partisan judiciary ballot with the two candidates for Judge of Common Pleas Court printed thereon, and the six candidates for Judge of the Superior Court."

3. "A non-partisan municipal ballot with Council, City Controller and Mayor printed thereon, the last form of ballot being used only within the cities of Erie and Corry, both cities of the third class."

The defendant claims as matter of law that the non-partisan municipal ballots cast for officers of the cities of Erie and Corry are to be considered in determining whether the plaintiff has received more "than one-half of the number of ballots cast in the political district or division within which the nomination is to be made. The intention of the legislature seems to be to grant the privilege of being certified as sole nominee only to the person who has received a majority of the ballots cast in the district. This requires the sole nominee to have received a vote greater than one-half of all the ballots cast in the district, which would indicate a majority of all the electors, participating in the primary election. The person claiming this statutory privilege must establish the statutory conditions by the weight of the evidence. It is conceded that the plaintiff has shown that he received a majority of the votes cast for the office. But has he shown compliance with the condition that he must have a majority of all the ballots cast in the district? It appears that the total number of ballots cast in the district is 18,358, including municipal ballots cast in the cities of Erie and Corry, but the Commissioners have made no certificate as to the number of these municipal ballots. While the Act requires a record to be made of the number of non-partisan and municipal ballots, no return of the number appears here. Any attempted calculation to ascertain this number from any figures returned leaves us in uncertainty and confusion. If, as plaintiff suggests, the number of the municipal ballots is the difference between the whole number cast, 18,358, and 14,644, the vote for the office of Judge, the number appears to be 3,714, and yet the votes cast for the office of Mayor in the city of Erie alone were 9,826. We have no information as to the number of candidates for this office either in Erie or Corry. The highest number of ballots cast for any county office in Erie County for a single candidate were cast for the office of Clerk of the Courts, and the party candidate for nomination to this office receievd together 12,323 votes. The candidates for County Commissioner, for which office two were to be nominated, received 25,717 votes, indicating 12,858 votes cast for the office of Commissioner, if it is assumed that each voter cast his ballot for two candidates. If the vote for Mayor in the city of Erie, or the vote for Clerk of the Courts, or the vote for County Commissioner, be deducted from the total number of votes cast in the district, as certified by the Commissioners, we have different results, and we find no evidence in the record which enables us to determine how many vctes were cast for the office of Judge in either of the two municipalities in which it is claimed the municipal vote should not be counted in determining whether or not the plaintiff has met the second condition necessary to establish his right to be certified as sole nominee. The burden is upon the plaintiff to establish this statutory right by the weight of the evidence. We are unable to find from anything in the record that he has done so, and cannot, from any figures returned, satisfactorily determine the number of votes cast in either of the municipalities for the office in ques

Rossiter vs. Woods, Secretary of Commonwealth.

tion. Even if the number could be ascertained we could not assent to the legal proposition that the ballots cast in the municipalities are to be deducted from the total number cast in the district. The plain language of the statute would be disregarded by such deduction. The impracticability of ascertaining the number of ballots cast in the municipalities may have led the legislature to adopt the language employed in the statute, which requires all the ballots cast in the district to be considered in ascertaining the whole number of electors who participated in the primary. In this state of the record we are of opinion that the defendant as Secretary of the Commonwealth has pursued the only proper course when he based his computation upon the total number of ballots cast in the district, as shown by the return of the County Commissioners. It is conceded that the plaintiff has not received a majority of these ballots, and we therefore find that he has not met all the conditions entitling him to be certified as sole nominee for the office of Judge. We, therefore, decline to award the injunction prayed for and dismiss the bill at the costs of the plaintiff.

Huselton vs. Woods, Secretary of Commonwealth.

Mandamus- -Non-Partisan Ticket- -Majority Voteof the Court.

-Evidence

Province

The district for the nomination of candidates for the Superior Court is the entire State, and the amendment of June 18, 1915, P. L. 1050, to the 13th section of the Act of July 24, 1913, is only a proviso to the general provision of the statute governing nominations on the non-partisan ticket which must give way to the general provision of the statute unless the circumstances of the particular case bring one or more of the candidates within the proviso. A quotient obtained by dividing the total number of votes cast by the number of offices to be filled, and if any one or more of the candidates received a vote greater than one-half of this vote does not meet the requirements of this proviso so as to prmit that candidate's name to go on the ticket unopposed by another candidate. Where it does not appear affirmatively and conclusively that any one or more candidates received a majority of the total vote cast, the candidates receiving the highest number of votes cast and in number to twice the number of persons to be elected shall be placed on the ballot for the November election.

A candidate to be the sole nominee on a ticket where two or more offices are to be filled must prove that he received a clear majority of votes at the primary like any other fact in controversy, and the court is not at liberty to base any action on uncertain or approximate proof.

A writ of peremptory mandamus will lie to enforce the placing of a candidate's name on the ballot.

Mandamus. No. 66 Commonwealth Docket, 1915. C. P. Dauphin County. Francis Shunk Brown, Attorney General, Wm. M. Hargest, Deputy Attorney General, Jesse E. B. Cunningham, John G. Johnson and Charles H. Bergner, for respondent.

Frederick L. Kahle, for petitioner.

KUNKEL, P. J., October 19, 1915.-At the primary election held on September 21, 1915, there were printed on the official primary ballot, as candidates for nomination to the office of Judge of the Superior Court, to which three persons are to be elected, the names of John B. Head, George B. Orlady, J. Henry Williams, Stephen H. Huselton, William D. Wallace and Charles Palmer. The total vote received by these candidates was 1,992,792, which was distributed as follows: John B. Head received 457,950 votes, George B. Orlady received 446,210 votes, J. Henry Williams received 422,684 votes, Stephen H. Huselton received 248,547 votes, William D. Wallace re

Huselton vs. Woods, Secretary of Commonwealth.

ceived 209,519 votes, Charles Palmer received 207,053 votes, and other persons received 829 votes.

The Act of July 24, 1913, as amended in its 13th section by the Act 6 June 18, 1915, P. L. 1050, declares that the number of nominees for any office within the provisions of the Act shall be twice the number to be elected at the succeeding election and that the nominees shall be those who' have received at the primary the highest number of votes cast for nomination to the office for which they are candidates. This is the general provision of the Act. The proviso, however, to Section 13 as amended, declares: "That whenever, at any primary, nominations are to be made of candidates to fill two or more vacancies in any appellate or other court of record, composed of two or more judges, if any one or more of such candidates shall receive a number of votes greater than one-half of the total number of votes cast for such office at such primary, and greater than one-half of the number of ballots cast for any one candidate for any office in the political district or division within which the nomination is to be made, then, and in such event, each of such candidates shall be the sole nominee for one of the respective vacancies in such office." It is quite clear that the general provision of the statute, which requires twice the number of candidates for the office or offices to be filled, must prevail, unless the circumstances of the particular case bring any one or more of the candidates within the proviso. The conditions of the proviso are two, that one or more of the candidates shall have received a majority of the total vote cast for the office, and in addition shall have received a number of votes "greater than one-half of the number of ballots cast for any one candidate for any office in the political district or division within which the nomination is to be made." It has not been shown in the present case what is one-half of the number of ballots cast for any one candidate for any office in the political district or division within which the nomination for Judge, of the Superior Court was made. This district was the entire State. The standard, therefore, by which is to be ascertained whether or not any one of the candidates fulfills the second condition, is not at hand. This in the present instance is so, because there were no ballots cast at the primary election for any other candidate for any office within the State, there being no office to be filled by the electors at large. It is suggested, however, that this condition is not operative under these circumstances. We cannot adopt this suggestion. The proviso distinctly declares the conditions upon which one or more candidates may become the sole nominee or nominees, and because the circumstances are such that the conditions cannot be fulfilled cannot alter the provisions of the law. The provisions of the statute cannot yield to any particular or exceptional circumstances. The circumstances must be such as to make possible the operation of the proviso, else the general provision of the statute must prevail.

On the question whether any one or more of the candidates received a number of votes greater than one-half of the total number of votes cast for the office at the primary there is no definite proof. The defendant contends that the standard by which this condition is to be measured is to be ascertained by taking the total number of votes polled by all the candidates for the nomination and by dividing that number by the number of offices to be filled. This quotient, it is claimed, will show the total vote cast for the office, and if any one or more of the candidates received a vote greater than one-half of this vote the condition of the proviso is met. This method assumes that every elector voted for three candidates for the office, while common experience and knowledge show that this cannot be the fact. Indeed the returns of the vote for the office of Judge of the Superior Court from some of the counties, which have been offered in evidence, in great measure show the contrary.