In re First Cong. Dist. Election

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: MOSCHZISKER, C. J.
• Citation: 294 Pa. 1,144 A. 735
• Parties: In re FIRST CONGRESSIONAL DIST. ELECTION.
• Decision Date: 28 November 1928

144 A. 735
294 Pa. 1

In re FIRST CONGRESSIONAL DIST. ELECTION.

Supreme Court of Pennsylvania.

Nov. 28, 1928.

144 A. 736

Original application by James M. Beck for a writ of prohibition relating to the First Congressional District Election. Writ granted.

Argued before MOSCHZISKER, C. J., and FRAZER, WALLING, SIMPSON, KEPHART, SADLER, and SCHAFFER, JJ.

William F. Berkowitz, Edward W. Wells, and Ira Jewell Williams, all of Philadelphia, for petition.

Richard T. McSorley and Allen S. Morgan, both of Philadelphia, opposed.

MOSCHZISKER, C. J. The petition in this case, for a rule to show cause why a writ of prohibition should not issue, was filed by James M. Beck, Republican candidate for Congress in the First congressional district of the commonwealth of Pennsylvania at the general election held on November 6, 1928. It avers that the election returns of the county of Philadelphia, in which the first district is located, were, on Thursday, November 8, 1928, brought before Hon. Harry S. McDevitt and Hon. Edwin O. Lewis, "judges duly selected * * * to act as return judges" of that county; that, on November 10, 1928, after computation of the entire returns of all the wards in the district, an announcement was made in open court that the petitioner had received 73 more votes than his opponent William L. Rooney, the Democratic candidate; and that thereafter, on November 13, 1928, a petition was presented to the above named two judges, sitting as the computation board, asking that certain ballot boxes be opened and the "votes in the divisions mentioned, or, if the court deems it proper, in all the divisions" of one ward in the district, "be recounted."

The petition for the writ of prohibition further states that the only averments in the petition to open the boxes, suggesting why a recount should be had, were that, in the Seventh ward, being the one here in question, there appeared on the face of the returns "certain irregularities and discrepancies," which were "similar to those in other divisions in other wards, where the court had already opened ballot boxes," and consisted of the facts that in certain instances Beck received a greater number of votes than the head of the Republican ticket, "said excess votes varying from 1 to 11" in the different divisions named, and that in other named divisions the votes for all the candidates on the Republican ticket were identical. In Beck's answer to the petition to open the boxes, he averred that counsel for his opponent was present during the computation of the votes of all the divisions involved and, wherever any irregularity appeared on the face of the returns, had asked the court to open the ballot boxes; but no such application had been made when the divisions now in question were being computed.

It appears, and petitioner for the writ avers, that the petition to open the ballot boxes contained no averment of a mistake or of fraud committed by the precinct election officers. As there stated, "The alleged discrepancies [mentioned in the other petition] might have resulted by ballots having been marked for both Republican and Democratic electors which would have nullified the vote as to the head of the ticket, or by an erasure, which would have invalidated the electoral vote, or by a split ballot with a vote for the candidate of the other party, or by the voter marking the ballot for the congressional candidate either alone or on a split ticket, thereby diminishing the number of votes for the head of that ticket as compared with the number of votes for the congressional candidate."

Finally, the petition for the writ avers that "on November 19, 1928, the petition of William L. Rooney [to open the boxes] was dismissed by a divided court, his honor, Judge McDevitt, being of the opinion that the petition should be granted, and his honor, Judge Lewis, being of opinion that the petition should be refused"; that "Thereupon his honor, Judge Lewis, left the [court] room, and immediately upon his departure his honor, Judge McDevitt, directed the clerk to notify all the election officers in the * * * divisions in question to appear on Friday, November 23, 1928, at 1 o'clock p. m., to open the ballot boxes and recount the ballots in said divisions." (Judge McDevitt's answer shows that Judge Lewis was informed that this course would be pursued.)

The petitioner, contending that a "single judge could not, in the absence of his colleague, after the dismissal of the petition [to open the boxes], in effect overrule the order refusing the prayer of [that] petition by directing the taking of action directly contrary to such ruling," and that "under the law, the computation of election returns in Philadelphia county must be made by at least two judges," asks for a writ of prohibition against Hon. Harry S. McDevitt, commanding him to "desist and refrain from continuing to act under his said order of November 19, 1928."

Both members of the computation board filed opinions. Judge McDevitt, who would open the boxes, makes no claim in his opinion of any evidence before the board showing either mistake or fraud, or of any particular averment to that effect; he contents himself by stating: "Examination of the ballots in the two score boxes that have

144 A. 737

already been opened would justify the conclusion of the petitioner that the returns on the face of them are palpably erroneous and that a recount, while it might not change the result of the election, would at least add to the correctness of the count." On the other hand, Judge Lewis, who would not open the boxes, correctly states: "There is not in the petition itself one averment that would justify us in granting the prayer to have the boxes opened in this court. The petitioner's counsel do not assert orally or in the petition itself that there was either fraud or mistake in counting the ballots; and certainly not one line in the petition discloses any fraud or error apparent on the face of the returns. We have no other ground of jurisdiction; we must have before us palpable fraud or palpable mistake [properly averred or] exhibited by the returns. [The Act of May 19, 1923, P. L. 267, 269, provides that before election officers are summoned to a computation court to correct their count "palpable fraud or mistake" must be specifically charged in a complaint under oath, or must be "apparent on the return" of the election precinct "complained of".] The petition before us contains no allegation that the petitioner knows, or even believes, or has reason to believe, that fraud has been committed, or that there has been any substantial error exhibited by the election officers, whether apparent or not apparent on the returns. The petitioner merely declares that there are 'discrepancies' manifested. As to one group of election precincts, he complains that the votes returned for some candidates are less than the votes for others, while, as to another group of precincts, he complains that the votes for all candidates are the same in number. As to the first group the 'discrepancies' he asserts consist in that the returns of the election officers indicate that a few more ballots were...