Edwards v. Prutzman

• Court: Superior Court of Pennsylvania
• Writing for the Court: TREXLER, President Judge
• Citation: 165 A. 255
• Parties: EDWARDS v. PRUTZMAN et al.
• Decision Date: 03 March 1933

165 A. 255

EDWARDS
v.
PRUTZMAN et al.

Superior Court of Pennsylvania.

March 3, 1933.

165 A. 255

Appeal No. 261, October term, 1932, from final decree of Court of Common Pleas, Carbon County, June term, 1931, No. 2; Samuel E. Shull, President Judge Forty-Third Judicial District, Specially Presiding.

Suit by Charles Edwards against M. G. Prutzman and others, Commissioners of Carbon County, and another, in which Webster A. Melcher was subsequently added as a party defendant. Decree for defendants, and plaintiff appeals.

Affirmed.

Argued before TREXLER, P. J., and KELLER, GAWTHROP, CUNNINGHAM, BALDRIGE, STADTFELD, and PARKER, JJ.

S. Maxwell Flitter, of Easton, and A. E. Hurshman, of Philadelphia, for appellant.

Frank X. York, County Sol., and Ben Branch, both of Mauch Chunk, for appellee.

TREXLER, President Judge.

The plaintiff filed a bill in equity in which he recited: He was a citizen and taxpayer of Carbon county; there was an election held on November 4, 1930; petitions were presented under the Act of April 23, 1927, P. L. 360 (25 PS §§ 2121-2126), praying for the opening of ballot boxes in certain election districts in said county; that, in pursuance of the request of petitions, the court directed the ballot boxes to be opened but exceeded its authority under the aforesaid act and proceeded in a judicial capacity instead of confining itself merely to a recount of the ballots found in said election boxes, and without warrant of law engaged one Webster A. Melcher of the city of Philadelphia as a handwriting expert, and subsequently directed the commissioners to pay the bill for his services. The prayer is that the commissioners be restrained from paying the bill. The court refused the prayer, ordered the commissioners to pay the bill, and this appeal followed.

The appellant argues that under the Act of April 23, 1927, P. L. 360, the court was required merely to see that a recount of the ballots was made, and that it exercised no judicial function. The act referred to in section 1 provides that, upon proper petition being presented, the court shall open the ballot boxes, and shall designate persons to count the vote, that, if upon opening the ballot boxes it is found that either fraud or substantial error was committed, the court shall certify the fact to the prothonotary to enable the ballot boxes and contents thereof to be available as evidence. The reference in the act is to "the Court." The recounting of the votes is the object...