Opinion
February 1, 1928.
February 1, 1928.
Election law — Computing votes — Act of April 23, 1927, P. L. 360 — Duties of computation board — Appeals — Certiorari — Facts found in opinion — Moot question — Quashing appeal — Contest.
1. In computing the vote cast at an election, the Act of April 23, 1927, P. L. 360, does not give to the court, acting as a computation board, the right to exclude the entire vote cast at any polling place.
2. The duty of such board is simply to recount and compute the vote.
3. Complaints that ballots should not have been received at all, belong to a contest of the election.
4. Complaints that particular ballots received should not have been counted or were incorrectly totaled are proper matters for consideration by the board.
5. As the Act of 1927 did not allow an appeal, an appeal taken from the action of the board is only a certiorari on which judicial review is restricted to the regularity of the record, but, on such review, findings of fact contained in the opinion of the court below may be considered so far as they concern fundamental questions.
6. Where, on such review, if all the alleged additional votes found in the box but not appearing on the return made by the election officers, were, as a matter of fact, either added or excluded in making the computation, and appellee would still be entitled to a certificate of election, the question sought to be raised by the appeal would be purely a moot one, and for this reason the appeal should be quashed.
Before MOSCHZISKER, C. J., FRAZER, WALLING, SIMPSON, SADLER and SCHAFFER, JJ.
Appeal, No. 52, March T., 1928, by Dan R. Schnabel, from order of C. P. Cambria Co., Sept. T., 1927, No. 46, on proceedings to open ballot box, In re Petition of John I. Smith et al. Appeal quashed.
Petition to open ballot box in Second District of Seventh Ward of City of Johnstown.
The opinion of the Supreme Court states the facts.
Order entered permitting the original count to stand, subject to right to contest the election. Dan R. Schnabel appealed.
Error assigned, was order, quoting record.
Frank P. Barnhart, of Barnhart Bender, for petitioners and appellees.
Argued February 1, 1928.
In computing the vote cast at an election, the Act of April 23, 1927, P. L. 360, does not give to the court, acting as a computation board, the right to exclude the entire vote cast at any polling place. The duty of such a board is simply to recount and compute the vote; complaints alleging that particular ballots should not have been received at all, belong to a contest of the election, while complaints that ballots received should not have been counted or were incorrectly totaled are proper matters for consideration by the board. This statute does not allow an appeal; therefore an appeal taken from the action of the board is but a certiorari, and on such an appeal judicial review is restricted to the regularity of the record, though in this class of cases, in passing on the regularity of the record, findings of fact contained in the opinion of the court below may be considered so far as they concern fundamental questions. In the present instance, if all of the alleged additional votes, found in the box but not appearing on the return made by the election officers, were, as a matter of fact, either added or excluded in making the computation, appellee would still be entitled to a certificate of election; hence the question sought to be raised by the appeal is purely a moot one, and, for that reason,
The appeal is quashed.