These appeals are based on alleged error in computation of the vote for governor at the primary held in Luzerne County on May 20, 1930. The first deals with the returns for the 2d District of the 8th Ward of the City of Wilkes-Barre. The court of common pleas was asked *Page 250 to open the ballot box used therein and direct that an accurate computation of the votes cast be made. On examination, to use the words of the President Judge of the court below, "The evidence in this case reveals a most glaring instance of foul fraud and corruption." This wrongdoing the court found was so extensive as to make a correct tabulation impossible. It held that the apparent fraud could only be taken advantage of in a contest proceeding, and, as the petition was based on the Act of 1927 (April 23, P. L. 360), providing solely for a recount, directed the commissioners to certify the result reached by the election officers.
Perforations by number, previously ordered by the court, appeared on each ballot, and for this reason it was also asked that the entire vote from the district in question be rejected. It is clear under the law that the direction to make such markings was without legal justification, and that the court exceeded its power in requiring that the ballots be so altered; its right to guard against anticipated fraud is limited, by act of assembly, to the appointment of overseers to conduct the election when the necessity for such course is made apparent by petition of a party interested. The county commissioners alone have power to determine the wording or marks on the ballots.
On June 21st, the last day before our summer recess, we were asked to grant a supersedeas to stay further proceedings until the dispute which had arisen was passed on in this court. We refused to make such an order. No completed record was then presented which would enable us to determine the real legal question involved, nor was the decree, finally requiring a certification of the returns by the commissioners, made until some days thereafter. Indeed the appeal in the first case involving the single district was not perfected until June 24, 1930, when the writ of certiorari was filed in the court below, though the affidavit asking a review was sworn to on June 20th. The second case, hereinafter *Page 251 referred to, in which objection was made to the certification by the county commissioners, ordered by the court, was not appealed from until July 9, 1930. It is therefore evident, that the question in dispute was not before this court on June 21, 1930, when it made its cautionary order refusing a supersedeas, and we could not have passed on the contested legal question subsequently raised, and now presented for the first time. Following the usual procedure, the hearing was made returnable at our next scheduled meeting, which, under the rules, was September 29th. Neither party saw fit to ask that the case be heard at an earlier date because of any existing emergency though such procedure is expressly provided for and permitted by our rules. This court however of its own motion ordered its advancement and fixed for hearing of argument the first day when it was possible to secure the attendance of a quorum of the court. We have carefully considered the briefs, record and oral arguments.
It does not follow that, because of the receipt of fraudulent ballots, or the improper perforation thereof, the entire vote of the district must be rejected, where the request is solely to open the box and retabulate the contents as permitted by the Act of 1927. A proceeding based on this statute is confined to a recounting, and, in addition, the correction of errors in calculation apparent on the face of the returns to the extent indicated in our most recent case: Hazleton Mayoralty Election,301 Pa. 14. If the reception of illegal votes is made evident, resulting in an admittedly dishonest return, the computation must nevertheless be accepted, and the parties injured relegated to contest proceedings. Here, the court found the fraud to be of such character as to make impossible the separation of the ballots validly deposited from those improperly cast, and for this reason could only accept the count returned by the election officers as verity. *Page 252
So that the interests of no one may be jeopardized by the delay necessary for the preparation of a formal opinion, which will be later filed, we have thus briefly stated our conclusion.
What has been said applies to the second appeal before us complaining of the receipt of returns from all districts in Luzerne County where perforated ballots were used, the same having been made at the direction of the court without any legal authority. This does not justify our rejection of the entire vote, as already noted, but was a matter for contest proceedings.
The orders of the court in both cases are affirmed at the cost of appellant.