Appeal, No. 176, March T., 1955, from order of Court of Common Pleas of Washington County, Aug. T., 1955, No. 110, in case of Opening Ballot Box of Second Precinct of the Third Ward, Borough of Canonsburg, Washington County, Pa. Appeal of Henry Norwood. Order reversed.
Samuel L. Rodgers, with him Robert L. Ceisler and Ceisler & Rodgers, for appellant.
George B. Stegenga, for appellee.
Before, Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno, and Arnold, JJ.
ORDER PER CURIAM, June 27, 1955:
AND NOW, to wit, June 27, 1955, the Order of the court below is reversed and the record is remanded with direction to correct the return of the Recount Board by counting as a vote for Henry Norwood for the nomination of councilman the vote contained in the disputed ballot in controversy in these proceedings. Opinion to be filed later. Each party to bear his own costs.
Opinion BY MR. JUSTICE MUSMANNO, August 31, 1955:
Henry Norwood, the appellant in this case, was a candidate for nomination as borough councilman in the 3rd Ward of the Borough of Canonsburg, Washington County, in the Democratic primary election of May 17, 1955. On May 25, 1955, upon proper petition presented to it, the Court of Common Pleas of Washington County appointed a Recount Board to recount the ballots cast in the second precinct of the Third Ward. At the termination of its task the Board concluded that Henry Hirst was the successful nominee over Henry Norwood by one vote. In the reviewing process the Board declined to accept as a valid vote for Norwood a ballot which carried on it a certain check mark in addition to the X in the square opposite his name. The Court of Common Pleas of Washington County, to which Norwood appealed, affirmed the report of the Recount Board and declared Hirst the officially designated
nominee of the Democratic Party for the office of councilman. Norwood then appealed to this Court.
In view of the obvious need for an immediate decision so that no delay might be encountered in preparing the ballots for the Fall elections, we held a special argument on the appeal at our session in Philadelphia on June 27, 1955 and on the same day ordered the disputed vote to be counted for Norwood so that under Section 923 of the Election Code, 25 P.S. 2883, lots could be cast for the determination of the tie vote. This Opinion is now filed to announce the reasons which caused us to reverse the decision of the Court below.
It is but commonplace to say that the right to suffrage is the most treasured prerogative of citizenship. Whether that right to be excised in the choice of a President of the United States or a Borough Councilman, it may not be impaired or infringed upon in any way except through fault of the voter himself. The majority of the three Judges who sat on this case in the Court of Common Pleas of Washington County were of the view that the unknown voter who prepared the telltale ballot now before us disfranchised himself when he employed both a check mark and an X in registering his will to vote for Norwood. In this respect they quote from the Act of 1937, June 3, P.L. 1333, Art. XII, Sec. 1223 (25 P.S. 3063(a)): "No ballot which is so marked as to be capable of identification shall be counted ... Any ballot marked by any other mark ...