Thirty-Second Congressional District of Pennsylvania Election Returns

Opinion by Mr. Justice Stewart, This case comes before us on a common law certiorari. Our examination of it therefore is confined to what is disclosed by the record. What is complained of is the. conduct of the board of return judges for the Thirty-second Congressional District, wholly within County of Allegheny, in computing the returns of the last general election so far as they relate to the election of one or other of the two leading congressional candidates voted [344] for at said election. The board of return judges, consisting of two of the Common Pleas judges of the County of Allegheny, began their sessions on the 9th day of November and concluded them on the 25th following. While in session, two qualified electors who had voted at said election for a representative in congress, presented their petition to the board in which they alleged that the election returns from some ten of the subdistricts composing the congressional district which had been filed with the prothonotary, and which by him had been presented to the court for computation, showed discrepancy between the tally sheets and the certified returns signed by the officers of the election in the number of votes cast respectively for Guy E. Campbell, and Andrew J. Barchfield, the two leading candidates; and that in computing the vote cast the board had counted the votes shown by the tally sheets and not those shown by the certified returns, with the result that 53 votes had been counted in favor of Guy E. Campbell in excess of the number he was shown to have received by the certified returns, thereby giving him a plurality of the votes cast. The petition prayed that the vote in said subdistricts should be recounted according to the certified returns instead of the tally lists. An answer was filed in which discrepancy between the tally sheets and the certified returns was admitted, but containing specific denial of all other material facts set out in the petition, and alleging that if the vote were computed on the basis of the tally sheets alone, it would show a plurality for Guy E. Campbell of 179 votes, and if computed on the basis of certified returns alone, his plurality would be 31 votes. The court after argument and upon further consideration refused the prayer of the petitioners, and returned the vote as showing a plurality for Campbell of 46 votes. In so finding was the board acting within its legitimate power? This is the only question presented by the record. Under the certiorari we may review the proceeding so far as to see whether the board kept within the limits of the power [345] conferred upon it, and exercised that power in conformity with the law. It is conceded that the certified returns and the tally sheets, in the instances specified, do not agree in the number of votes cast for these several and respective candidates. The error or mistake is apparent on the face of the returns. It is not suggested that this resulted from any fraudulent design or purpose. The fact that it existed and was apparent, without more, cast upon the board the burden and responsibility of an investigation, to the end that a just result might be reached by its computation. When mistakes such as this occur, whether charged or not, if apparent, the statute governing — the Act of May 6, 1909, P. L. 425 — provides that the court shall examine the returns, and if, in its judgment, it shall be necessary to a just return, it shall issue summary process against the election officers and overseers, if any, of the election districts complained of, to bring them forthwith into court with all the election papers in their possession; and if palpable mistake or fraud shall be discovered, it shall, upon such hearing as may be deemed necessary to enlighten the court, be corrected by the court and so certified; but all allegations of palpable fraud or mistake shall be decided by the court within thrée days after the returns are brought, into court for computation. Since the duty thus imposed on the court is the computation of the votes cast at the election, as exhibited by the returns submitted by the prothonotary, it follows that the board was acting in the proceeding strictly within the limits of its authority; and it is. equally clear that in the manner of its performance it omitted nothing required of it by the act. If it failed to do all that the law gave it power to do, as for instance, compel the attendance of the election officers and the production of all election papers in their possession, we can only conclude that this was because in the exercise of the discretion with which the law invested the court, it did not deem such course necessary or even helpful in enabling it to make a just return. Every pre [346] sumption is to be made in favor of tbe proceeding of tbe court below in sucb cases: Election Cases, 65 Pa. 20. Speaking for ourselves we fail to see how tbe election officers could contribute help in any degree in sucb situation as was -here presented; nor do we see bow any election papers they might have would throw light upon tbe situation. Were fraud alleged tbe case would be different ; but tbe court here was dealing not with a question of fraud, but with a discrepancy in a count which was admittedly a pure mistake in the1 computation of tbe election officers. Moreover — and. of still greater pertinence to tbe one subject of inquiry before us, namely, tbe order of tbe board in refusing tbe prayer of tbe petitioners— tbe petitioners, although earnestly claiming that it was error in tbe board not to summon the election officers before them with election papers in their possession, nowhere and at no time asked this of tbe board; tbe refusal of their petition did not conclude them from asking sucb process if they thought it promised any result. Tbe single other error assigned is tbe refusal of tbe court to count tbe votes as shown by tbe signed and certified return sheets to tbe exclusion of tbe tally sheets. It is quite enough to say that tbe tally sheets are as much part of tbe general return required by law to be deposited with tbe prothonotary and by him presented to tbe court for purposes of computation, as any of tbe certified returns by tbe election officers. They are all alike complementary, and together constitute one return. “In examining tbe returns of tbe election tbe whole returns are to be taken, and tbe omission, if any, in any one part of it, are to be supplied from what appears in the others. Tbe failure of tbe election officers to set out upon tbe triplicate return sheets, or in tbe open returns, tbe terms for which tbe several candidates for tbe office of school directors were respectively voted for, is to be corrected and supplied by tbe tally list which shows sucb terms”: Com. ex rel. v. Fletcher et al., 180 Pa. 456, p. 463. While as a general rule tbe review qn certiorari is con [347] fined to the judgment without reference'to the reasons of the court in entering it, in such a proceeding as this it is permissible to look at the opinion to see the basis on which the court acted. In this case we deem.it peculiarly appropriate and only justice to the court, in view of the objections which have been urged, to recite so much of the opinion of the court as here follows. “The return sheets are prima facie correct. But we must ascertain if there are any palpable mistakes; a discrepancy between the certificates and the tally sheet is a palpable mistake. The tally sheet does not always govern, and there may be cases where it is manifestly incorrect, or at least of doubtful value, but where it is free from erasures and properly kept, but the footing is incorrect, and that error is carried into the certificate, it is a mistake apparent on the returns, and, it is not ‘necessary to a just return’ to bring in the election officers. We do not lay down any hard and fast rules, but we have made the returns to correspond with the correct footing of the tally sheets where the discrepancy is a manifest error in addition, inasmuch as the tally papers are free from any suspicion.” The judgment of the court is affirmed.