In re Contested Election of Gilleland , 96 Pa. 224 ( 1881 )

Mr. Justice Mercur

delivered the opinion of the court, January 3d 1881.

At an election of school directors, held in the Fifth ward of the city of Allegheny, four directors were, to be chosen, namely, two for the term of three years, one for two years, and one for one year. The tickets voted generally contained the names of four persons, and opposite each the number o'f years, whether one, two, or three. In some cases a person was voted for without anything opposite his name indicating whether it was for a term of one, two, or three years. In other cases there were less than four names on the ticket. Of the ballots cast, stating three years opposite their names, Gilleland received more than Ammon. Thirty-three tickets with “stickers ” thereon were voted, with the name of Ammon thereon. They were so pasted over the name of a candidate printed on the ticket as to cover his name, and also the length of the term designated. On some other tickets Ammon’s name was so pasted as to cover two names and the designated term opposite each. On a few ballots Ammon’s name was found without a sticker and without any indication of the length of term opposite thereto.

As Ammon’s thirty-three “ stickers ’’ were pasted over the name of a person designated for a term of three years, and, although both name and term were covered and concealed, the court decided they should be counted as ballots for Ammon and for the term of three years, and thereupon decreed that Ammon was duly elected for the term of three years and that Gilleland was not elected. This presents the alleged errors.

The second section of the Act of 11th of April, 1862, Pamph. L. 471, is not applicable to this case. It provides only for cases in which the voters have all neglected to designate on their tickets the term of office for which each person voted for is a candidate — such was not this case. Here most of the ballots clearly stated on their face the term for which each candidate was intended.

It was agreed before the commissioner appointed to take testimony that- the ballots cast for the term of one and two years should be omitted from his report, excepting such as bear on the contest between Ammoh and Gilleland for the term of three years. We understand this to mean that votes cast for either of them for a term of one or two years should not be counted on their term of three years, but might be considered in determining how many votes were cast for each for the term of three years. If any votes were east for Ammon for either one or two years', it lessens the probability that the thirty-three votes were all intended for three years. If other ballots were cast for him for a less term than three years these might so have been intended. Certain it is several votes not “ stickers ” were cast for him without designating any term. On some ballots he was the only director voted for and no term was specified. It may be conceded, if the sticker had been pasted over the name only of another candidate, leaving visible the designated term opposite, that term would apply to the name on the sticker; but we cannot draw any such inference when the term is also covered. The effect of covering the name and term is the same as if they were both entirely erased. That which is pasted over is all that is visible to the eye of the officers of the election. They have no authority to remove the “sticker” and to decide that one part beneath is inoperative and another part remains in full force. We agree with the authorities cited that placing a paster containing one name over another name, indicates an intention to substitute one name for another; and if it be placed over another name which is under the title of office, it indicates an intention to substitute for that office the name on the paster. In such case the name of the person voted for and the term are both clearly shown on the ballot. There is no room for doubt. The ballot shall be adjudged to be just what its face declared. Apply that rule to the present case. The ticket was headed “ school directors.” Under that title of office was found the name of Ammon. Those tickets were undoubtedly intended to be votes for him as school director; but they stopped there. The electors voting them did not designate any specific term. For the court to determine the length of term intended by the persons casting these votes would be based on mere conjecture. It is just as uncertain as if everything printed on that line had been obliterated and Ammon’s “sticker” been pasted at the bottom of the ticket and no term written opposite. The intention of the voter as a general rule must be expressed by his written or printed ballot. It is true some inaccuracies in the name of a candidate, or in the manner of spelling it, may be proved by parol to give effect to the intention of the elector. That is not this case. Here the attempt is by mere inference to create a term which the voter did not attempt to declare. Where officers for the same office are to be chosen for different terms the ballots must specify the term for each person voted for, unless the case comes under the Act of 11th April, 1862, supra; Milligan’s Appeal, ante, p. 222. The learned judge therefore erred in counting the thirty-three votes for Adam Ammon, and in decreeing that he was duly elected a school director in the Fifth ward of Allegheny city at the election held on the 17th of February 1880, for the term of three, years instead of John A. Gilleland, to whom a certificate of election was given, and that said Gilleland was not elected.

Decree reversed, and it is ordered that the petition be dismissed, and that John A. Gilleland be reinstated in his said office for the term of three years according to the certificate of election given to him.