Opinion
January 9, 1934.
January 30, 1934.
Elections — Recomputation of votes — Judges of court of common pleas — Recomputation as substitute for contest.
1. A recomputation is not a substitute for a contest in which the legality of the votes actually cast may be passed upon. [24]
2. A petition by a voter for a writ of certiorari, averring palpable fraud not apparent on the face of the returns in an election, and praying that the election officers be brought into court with all election papers in their possession, and, upon fraud being discovered, that the returns be corrected and a just return be made, is in effect an attempt to have the judges of the court of common pleas sitting as a return board determine an election contest, and is properly refused. [24]
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeals, Nos. 162 and 163, Jan. T., 1934, by plaintiff, from order of C. P. Lackawanna Co., Nov. T., 1933, No. 1727, in case of John A. Kline v. Michael J. Eagen. Orders affirmed.
Petition for correction of returns. Before NEWCOMB, P. J.
The opinion of the Supreme Court states the facts.
Proceedings dismissed. Plaintiff appealed.
Errors assigned, inter alia, were orders, quoting record.
Clarence J. Wing, with him Wallace G. Moser and Paul H. Maxey, for appellant.
James J. Powell, with him David J. Reedy, M. J. Murray, Jr., Stanley F. Coar, Frank W. Coyne, John W. Murphy, and James W. McNulty, for appellee.
Argued January 9, 1934.
These proceedings are before us on writ of certiorari and are based on a petition of plaintiff, a "qualified elector and voter of Lackawanna County," averring "palpable fraud not apparent on the face of the returns" in the election for district attorney held November 7, 1933, in the First District of the Second Ward of the Borough of Archbald, and praying the court to issue "summary proceedings against the election officers and overseers of the election district complained of, and to bring them forthwith into court with all election papers in their possession; and upon fraud being discovered, the returns of said election district shall be corrected by the court, and a just return made in accordance with law." After a full hearing the court dismissed the proceedings at petitioner's costs. Appellant's petition was presented to the judges of the court of common pleas sitting as a return board, and was in effect an attempt to have that body determine an election contest. This the lower court properly refused to do. "A recomputation is not a substitute for a contest in which the legality of the votes actually cast may be passed upon." Luzerne County Election Returns, 301 Pa. 247, 258. See also In re Plains Twp. Election Returns, 280 Pa. 520.
The orders of the lower court are affirmed at petitioner's cost.