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APPEAL WILLIAM E. YERGER (03/18/75)

decided: March 18, 1975.

APPEAL OF WILLIAM E. YERGER, APPELLANT FROM ORDER OF COURT OF COMMON PLEAS OF BUTLER COUNTY, PENNSYLVANIA. PETITION OF VOTERS OF JACKSON TOWNSHIP TO CONTEST NOVEMBER 6, 1973 ELECTION FOR TAX COLLECTOR


COUNSEL

Galbreath, Braham, Gregg, Kirkpatrick, Jaffe & Montgomery, John J. Morgan, Butler, for appellant.

William F. Riesmeyer, III, Coulter, Gilchrist, Dillon & McCandless, Butler, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Manderino, J., joins in this opinion and filed a concurring opinion. Nix, J., filed a dissenting opinion.

Author: Roberts

[ 460 Pa. Page 539]

OPINION OF THE COURT

This election contest presents the question whether write-in votes may be counted when they are cast on a voting machine for a candidate whose name appears on the face of the machine. The trial court directed that such votes be counted. We reverse.

On November 6, 1973, an election was held to select the Tax Collector of Jackson Township. The result of the official canvass was that William Yerger had received 207 votes and Norman Frederick had received 205 votes. A petition to contest the election was filed by supporters of Frederick, challenging the failure to count eight write-in votes.*fn1 Appellant Yerger answered that those votes were void because they were cast, in violation of section 1216(e) of the Election Code, on a voting machine for a candidate whose name appeared on the face of the machine.*fn2

[ 460 Pa. Page 540]

After hearing evidence, the trial court found that Frederick and Yerger were listed on the machine as candidates for tax collector. Above the line on the machine containing the names of Yerger and Frederick as candidates for tax collector was a slide which

"when pushed up enabled a voter to write in a vote for the office of tax collector and when this [slide] was raised, it was no longer possible to register a vote by activating the lever of either of the candidates whose names were printed on the machine . . . because once the write-in [slide] was raised, the only vote that could thereafter be registered on the machine for the office was a write-in vote."

The trial court concluded that section 1216(e)'s command that "no irregular ballot shall be cast on a voting machine for any person . . . whose name appears on the machine as a candidate for that office, and any ballot so cast shall be void"*fn3 was unconstitutional. It first noted that write-in votes cast on paper ballots on which the name of the same candidate is printed are counted. James Appeal, 377 Pa. 405, 105 A.2d 65 (1954). Relying on dictum in Parente Appeal, 390 Pa. 249, 253, 135 A.2d 62, 64 (1957), the court held that subjecting write-in votes cast on machines to a different rule violated the command of article VII, section 6 of the

[ 460 Pa. Page 541]

Pennsylvania Constitution, P.S., that election laws be uniform.

Because it concluded that the Election Code provision in issue was unconstitutional, the trial court ordered the write-in votes counted and declared Frederick the winner. This appeal ensued.*fn4

Before considering the constitutional question decided by the trial court, we must first resolve an issue of statutory construction. On its face, section 1216(e) appears capable of only one construction, for it unambiguously commands that

"no irregular ballot shall be cast on a voting machine for any person for any office, whose name appears on the machine as a candidate for that office, and any ballot so cast shall be void and not counted."*fn5

Appellees, however, contend that section 1107(h) of the Election Code,*fn6 relating to standards required of voting machines, alters the impact of section 1216(e). Section 1107(h) requires that the machine

"permit each voter to change his vote for any candidate . . . up to the time that he begins the final operation to register his vote."*fn7

Here there appears to be a conflict between these two sections, for both cannot be given full literal effect on existing voting machines. The trial court found that the machine used in this election does not permit a voter who raises the write-in slide to vote for that office except by write-in. If a voter lifts the slide either by accident

[ 460 Pa. Page 542]

(there were several write-in contests on nearby lines) or intending to cast a write-in vote, he cannot, "before he begins the final operation to register his vote," correct his error or change his mind in order to cast a regular vote for one of the candidates listed on the machine.

It is therefore argued that the apparent conflict should be avoided by construing section 1216(e) to apply only where consistent with section 1107(h). We find this argument without merit.

First, as this Court said in Cali v. Philadelphia, 406 Pa. 290, 177 A.2d 824 (1962):

"It is an established principle of . . . construction that, where a conflict exists between a specific . . . provision which is applicable to a particular case and certain general provisions which, were it not for such ...


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