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GUNNETT v. TROUT. (03/14/55)

March 14, 1955

GUNNETT, APPELLANT,
v.
TROUT.



Appeals, No. 3 and Nos. 24 to 28, inclusive, May T., 1955, from decree of Court of Common Pleas of York County, April T., 1954, in Equity, No. 1, in cases of Clifford Gunnett v. Walter Trout et al., Commissioners, etc., et al., and in re recount of ballots, etc., of Borough of Hanover, etc. Appeals at Nos. 24 to 28 quashed; decree in appeal at No. 3 affirmed.

COUNSEL

Frank B. Boyle, with him Thomas H. Reed, Arthur Markowitz, Budding & Yost, and Markowitz & Liverant, for appellant.

Donald E. Albright, with him John F. Rauhauser, Edwin M. Buchen, C. A. Lingg and Lingg & Albright, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 380 Pa. Page 505]

OPINION BY MR. JUSTICE JONES

Pursuant to Section 5 of the Act of July 2, 1935, P.L. 599, as amended, 4 PS 63, a petition in due form was filed with the commissioners of York County seeking a referendum on the question whether the showing of motion pictures on Sunday in the Borough of Hanover should be permitted. The petition was approved and official ballots stating the statutorily prescribed question were made available to the voters in the five election districts (being the five wards) of the borough. The referendum was held at the time of the municipal election on November 3, 1953.

Section 4 of the Act of 1935, supra, provides, inter alia, that "Such [referendum] election shall be governed by the election laws of the Commonwealth, and all penalties provided by said laws shall apply to such elections."

As shown by the general return sheets of the referendum, more negative than affirmative votes were cast in answer to the submitted question. Subsequently, three qualified electors in each of the five wards of the borough separately petitioned the court of common pleas of the county to open the ballot boxes in the respective five election districts and have the votes on the referendum recounted. It is obvious from the content of these petitions (viz., three petitioners, general instead of specific allegations of fraud and the deposit of $50 with each petition at the time of filing with the

[ 380 Pa. Page 506]

    prothonotary) that the opening of the ballot boxes for a recount was sought under the provisions of Section 1701 of the Pennsylvania Election Code of 1937, P.L. 1333, 25 PS ยง 3261.

The court granted the petitions to open the boxes in the First, Second, Fourth and Fifth Wards and appointed a board to recount, under the court's supervision, the votes cast in the referendum. The petition relative to the Third Ward was refused in the evidently mistaken belief that the petition had been filed too late. However, that is of no present moment as will soon appear. The referendum votes in the indicated four election districts, as recounted by the board, plus the vote in the Third Ward, as originally canvassed and computed by the county election board, produced a total of 2226 votes against to 2022 votes for. The court thereafter duly certified this result to the county election board whose statutory duty it was to determine the final result and to notify the acting executive officer of the municipality accordingly.

Thereupon, each set of petitioners in the five petitions for the opening and recount separately appealed to this court, ostensibly from the certification of the lower court, sitting as a recount board, to the county commissioners, sitting as the county election board. Those appeals, which are at Nos. 24, 25, 26, 27 and 28, May Term, 1954, will be quashed without extended discussion. The recount, as certified by the court, was but a step in the course leading to the ultimate result, viz., the certification by the county election board to the acting chief executive officer of the municipality of the result of the vote on the referendum question. The way to impeach the final certificate ...


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