West Mahanoy Township's Contested Election , 258 Pa. 176 ( 1917 )

Opinion by

Me. Chief -Justice Beown,

At an election held November 2, 1915, two school directors were to be elected in the West Mahanoy Township School District, Schuylkill County. There are four election precincts in the township—Lost Creek, William Penn, Brownsville and Haven Bun. Thomas McCoy and Prank J. Donahue, the appellants, were candidates for school directors on the Democratic ticket, and John D. Edmunds and John Cosgrove, the appellees, were candidates for the same office on the Bepublican ticket. McCoy and Donahue were returned as elected, but, within the period fixed by the statute for contesting an election, qualified electors of West Mahanoy Township instituted a proceeding to contest the election of the appellants, on the ground of fraud and gross irregularities in connection with the election in the Lost Creek precinct. This proceeding was discontinued shortly afterwards by counsel for the petitioners. Subsequently, on the petition of the electors of the township, the discontinuance was stricken off by the court, and the petition for the contest was reinstated. After a full hearing and the taking of a mass of testimony, the court decreed that the election in the Lost Creek precinct was null and void, and its entire returns were thrown out. With the returns from that precinct not counted, those from the other three showed Edmunds and Cosgrove to be elected. Prom the decree so holding, McCoy and Donahue have appealed.

The action of the court below in striking off the discontinuance of the proceeding instituted to contest the election of the appellants, and in reinstating the petition of the contestants after the expiration of the statutory period within which a contest must be instituted, has not been assigned as error, and we do not, therefore, pass upon the authority of the court to reinstate the proceeding.

This appeal brings up a most voluminous record, and there are ninety-two assignments of error, but the sole . question for determination is whether the court erred in throwing out the returns from Lost Creek. Before passing upon this question it is proper that we say no error was committed in refusing to open the ballot box from the William Penn precinct upon the petition of the respondents. They failed to show fraud, irregularity, illegal voting or counting of votes in that precinct, which called for the opening of the box, and the ninetieth assignment of error is overruled.

For mere irregularities in conducting an election it is not to be held void, even though the election officers maybe subject to punishment for misconduct. This is so .because the rights of voters are not to be prejudiced by the errors or wrongful acts of the officers of the election, unless it appears that a fair election and honest count were prevented: Krickbaum’s Contested Election, 221 Pa. 521. Nor is the mere casting of fraudulent votes sufficient to throw out the return from an election district. “The remedy in such case is to purge the polls by striking out the fraudulent votes, if possible”: Melvin’s Case, 68 Pa. 333. But where no election is legally held in an election precinct, the returns from it may be thrown out.

In the case now under consideration the conditions that existed at the election at Lost Creek were as disgraceful as they are inconceivable, and are thus properly summarized by the learned court below, after a review of the testimony and the facts to be found from it: “The ballots, tally, return sheets, and supplies generally, were tampered with; records were irregularly and illegally kept; voters were threatened before the election and on election day; were prevented from voting; were intimidated; coerced and not allowed to vote as they wished; blackjacks and pistols were used, and personal attacks made on legal voters, overseers and watchers while in the performance of their duty. All of this was done by, or under the direction of the election officers, aided by their ‘buffer’ and his assistant.” It clearly appeared from the testimony that these ruffians intimidated the overseers, and for this reason the court below was expressly authorized to throw out “all votes polled in the precinct” : Act of January 30, 1874, P. L. 31, Section 4.

Each appeal is dismissed on the following correct conclusions reached by the court below: “The whole election was illegally and fraudulently conducted. The number of voters prevented from voting by intimidation, threats and violence, and the number of voters coerced by interference in the booths could not be known, and the correctness or legality of the vote cast and returned could not be ascertained. There was practically no election or opportunity for the voters at this poll to express and have recorded their wish or choice by their ballot, and there is no possible way to ascertain the correct, or approximately correct, result out of this seething mass of corruption, blackguardism and brute force.”

Appeals dismissed at costs of appellants.