Opinion
April 10, 1936.
June 26, 1936
Elections — Candidates — Designation on more than one ticket — More than one to be elected — Cumulation or consolidation of votes — Confusion among voters — Bond — Sureties — Appeal — Review — Scope — Act of April 28, 1899, P. L. 118.
1. Votes may not be cumulated or consolidated in favor of a candidate in an election wherein each voter is entitled to vote for more than one candidate, and this is especially so where, by reason of the misspelling of the name of the candidate or other circumstances, there is confusion among the voters as to the identity of the candidates listed, causing some of them to suppose that two distinct persons were candidates. [321-2].
2. Where, in an election contest, a bond was accepted and approved by the court the day after the petition was filed, although it was defective in that it did not contain the signatures of the two sureties, but within ten days, on motion of petitioners, two sureties signed the bond, such bond fully complied with the requirements of the Act of April 28, 1899, P. L. 118. [323-4]
3. In an election case, the appellate court will review the record on certiorari merely to ascertain if an error of law appears therein or whether the findings are supported by any evidence, but it will not substitute its own conclusions for those of the trial court unless such errors appear. [323]
Before KEPHART, C. J., SCHAFFER, MAXEY, DREW, LINN and STERN, JJ.
Appeal, No. 95, March T., 1936, from order of Q. S. Allegheny Co., Dec. Sessions, 1935, No. 35, in re Contest of Election of E. C. Shaffer, as a Member of Council from the Fifth Ward of the Borough of Homestead, Allegheny County. Order affirmed.
Petition for contest of election. Before E. W. MARSHALL, J.
The facts are stated in the opinion of the Supreme Court and in the adjudication of E. W. MARSHALL, J., of the court below in part as follows:
"There is one all-sufficient reason why this contest must be decided in favor of Rogers, the contestant. E. C. Shaffer, his opponent, can only succeed by having credited to himself not only the 528 Democratic and nonpartisan votes which he received, but also 32 votes which were cast for E. C. Schaffer, listed in a separate block on the ballot as the nominee of the Citizens party. But this would necessitate a cumulation or consolidation of votes in an election wherein each voter was entitled to vote for two candidates, and this court has definitely ruled that in such circumstances a cumulation cannot lawfully be had: In re Carother's Election Contest, 25 D. R. 1151. . . .
"In the case cited, Judge SWEARINGEN pointed out that prevention of cumulative voting where each elector had the right to vote for more than one candidate was one of the purposes of the applicable statute [Act of 1893, P. L. 419, as amended by the Act of 1903, P. L. 338], which was plainly designed to frustrate fraud; also that a statutory method [Act of 1893, P. L. 419, section 15] is provided for remedying in advance of the election any mistake in the name of the candidate or in the composition of the ballot, and that a candidate's failure to avail himself of the remedy must defeat his claim for cumulation. In Com. ex rel. Adams v. Bishop, 7 Pa. D. C. 733, it was even more clearly pointed out how easily fraud will be accomplished if votes may be cumulated when more than one candidate is to be voted for. . . .
". . . In Seim's App., 316 Pa. 225, there was but one candidate to be elected and hence the cumulation of votes was sanctioned.
"Finally we observe that respondent's thirty-two witnesses who claimed to have voted for him on the Citizens ticket were not interrogated as to what other candidate for council they voted for. For all that appears, every one of the thirty-two may have voted for E. C. Shaffer on the Democratic ticket and also for the same individual under the name of E. C. Schaffer on the Citizens ticket. Failing to exclude this possibility, respondent would not seem to have offered a sufficiency of proof, even conceding he was entitled to a cumulation.
"The confusion and misleading of voters made possible by E. C. Shaffer's failure to have the spelling of his name corrected and his name listed but once on the ballot makes it legally impossible to cumulate and consolidate the votes cast for E. C. Schaffer on the Citizens ticket with the Democratic and nonpartisan votes cast for E. C. Shaffer."
Order entered revoking certificate of election issued to respondent and directing that a new certificate be issued to contestant. Respondent appealed.
Errors assigned, among others, were various findings and conclusions of trial judge.
P. H. Maguire, with him Joseph P. Passafiume, for appellant.
E. A. Keizler, for appellee, was not heard.
Argued April 10, 1936.
Two councilmen were to be elected in the Borough of Homestead. The name of E. C. Shaffer was printed on the official ballot in one block as the Democratic candidate, and the name of E. C. Schaffer, as Citizens candidate in another block. There were two persons by the name of E. C. Shaffer in the borough. The return board consolidated 521 Democratic votes and seven nonpartisan votes for E. C. Shaffer and 32 Citizens ticket votes for E. C. Schaffer, giving him a total of 560 votes as against a total of 550 votes cast for Albert D. Rogers on the Republican and Square Deal tickets, and declared Shaffer elected. The court below revoked the certificate of election on the ground that unlawful cumulative voting was possible under these circumstances, and the voters were confused by the two names. This appeal followed.
No express right of appeal is given in contested election cases. We review the record on certiorari merely to ascertain if an error of law appears therein or whether the findings are supported by any evidence, but we do not substitute our conclusions for those of the trial court unless such errors appear: Geary's App., 316 Pa. 342, 351; Meiss's App., 317 Pa. 28, 29; Fleming v. Prospect Park Board, 318 Pa. 582.
This case is affirmed on the opinion of Judge ELDER W. MARSHALL for the court below, which will be found in the reporter's notes. To this we need only add that an examination of the record reveals that there is testimony to support the finding of considerable confusion among the voters as to the identity of the candidate listed, causing some of them to suppose two distinct persons were candidates, by reason of the fact that Shaffer's name appeared in two separate blocks, spelled differently. Following our rule we will not disturb this finding.
The bond was signed by two sureties, as required by the Act of April 28, 1899, P. L. 118. The petition for contest was filed on December 5, 1935, and on December 6, 1935, the court accepted and approved petitioner's bond, though it was defective in that it did not contain the signatures of two sureties. Within 10 days, on motion of petitioners, two sureties signed the bond. It fully complied with the requirements of the act.
The order of the court below is affirmed at appellant's cost.