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ROME TOWNSHIP REFERENDUM RECOUNT CASE. (11/09/59)

November 9, 1959

ROME TOWNSHIP REFERENDUM RECOUNT CASE.


Appeal, No. 174, March T., 1959, from order of Court of Common Pleas of Crawford County, Sept. T., 1959, No. 18, in case of recount of ballots of Township of Rome, Crawford County, Pennsylvania, for the referendum on the granting of malt and brewed beverage retail dispenser licenses. Order affirmed. Proceedings on petition to open ballot box and recount votes. Adjudication filed directing that ballot box be opened and votes recounted, and order entered, opinion by MOOK, P.J. Licensee appealed.

COUNSEL

Paul E. Allen, with him Stuart A. Culbertson, for appellant.

John S. Kookogey, for appellees.

Before Bell, Musmanno, Jones, Cohen, Bok and Mcbride, JJ.

Author: Bok

[ 397 Pa. Page 331]

OPINION BY MR. JUSTICE BOK

Three residents of Rome Township, Crawford County, filed a petition alleging error in the count of ballots cast during the primary election held in May,

[ 397 Pa. Page 3321959]

. The subject of the alleged error was the vote on a referendum concerning the grant of malt and brewed beverage licenses in the township.

The vote was 126 for and 125 against. The court below issued a rule to show cause and notice was sent to the sole licensee under the Liquor Control Act in the township. He filed an answer to the petition, alleging that the Election Code (Act of June 3, 1937, P.L. 1333, § 1701 et seq., 25 P.S. § 3261) makes no provision for contesting or recounting the vote on a referendum. The court below discharged the rule and ordered the recount. The licensee then appealed.

His first point is that the title of the Election Code does not foreshadow recounts and hence violates Article III, Section 3, of the State Constitution. This was not raised in the court below and will not be considered here: Williams v. Masters, Mates, and Pilots of America, Local No. 2, 384 Pa. 413 (1956), 120 A.2d 896, even though a Constitutional question is involved: Montgomery County Bar Association v. Rinalducci, 329 Pa. 296 (1938), 197 A. 924; Muse-Art Corp. v. City of Philadelphia, 373 Pa. 329 (1953), 95 A.2d 542.

We held in Kittanning Country Club's Liquor License Case, 330 Pa. 311 (1938), 198 A. 91; Greene Township Malt Beverage License Contest, 331 Pa. 536 (1938), 1 A.2d 670, and Gunnett v. Trout, 380 Pa. 504 (1955), 112 A.2d 333, that a contest of a liquor referendum is not authorized by the Election Code or by any other statute. The question is therefore whether a recount, as distinguished from a contest, is so authorized.

The forerunner of the Act of 1937 was the Act of April 23, 1927, P.L. 360. It has been held to be a highly remedial statute which should be liberally construed in order to secure a proper computation of the votes cast at an election: Hazleton ...


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