Opinion
September 27, 1934.
November 26, 1934.
Elections — Contest — Pleadings — Nature of inquiry — Sufficiency of petition — Identity of persons committing irregular actions — Averment that illegal votes accrued to benefit of respondent — Presumption-Necessity — Fraud — Irregularities.
1. In the contest of election to an office involved in a general election, the intent of the inquiry is not whether the election was undue or illegal but is as to whether the election for the office in contest was undue or illegal. [564-5]
2. A complaint of an undue and illegal election or a false return must be stated with clearness and precision and the petitioners held to due diligence to ascertain and specify the facts which, if sustained by proof, would require the court to set aside the result of the election. [565]
3. While pleading in election contests should not be governed by such strictness as to protect fraud, the acts of sworn officers should not be attacked without adequate and well defined cause. [565]
4. Where such glaring fraud and illegality exist as to make it impossible to purge the ballot boxes with any degree of accuracy, the court may reject the whole vote of any or of several districts. [567]
5. Such action will not be taken, however, in the absence of specification of fundamental fraud as to the contest involved. [567]
6. Where no fraud is shown, mere irregularities in conducting an election, not affecting the result, will not require rejection of the entire vote of the election district. [568]
7. Such irregularities will not void an election even though the election officers may be subject to punishment. [565]
8. The presumption is that the votes recorded for a candidate for office by the return board were legal, and if, in a contest of the election of such candidate, it is proposed to be proved that any of them were illegal, it is essential that the petition contain averments that these illegal votes accrued to the benefit of respondent. [566]
9. A petition for contest of election to an office which was involved in a general election, and to which the respondent was elected according to the official returns which credited him with a plurality of approximately 250, will be quashed where such petition avers that in designated districts upwards of specified numbers of persons voted illegally, and that persons with known affiliations with the party whose candidate the contestant was, were unlawfully refused permission to vote, and avers other irregular acts of the election officials and other persons, but does not set forth the names of the persons involved except in one case, and does not aver that any of the votes fraudulently cast accrued to the benefit of the respondent or were detrimental to the contestant. [561-71]
Argued September 27, 1934.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 192, March T., 1934, by Edward J. Caye et al., petitioners, from order of Q. S. Allegheny Co., Dec. T., 1933, No. 26, Miscellaneous, in re Contest of Election of Frank I. Gollmar, as Sheriff of Allegheny County, Pennsylvania. Judgment affirmed.
Contest of election.
The facts are stated in the opinion, PATTERSON, J., of the lower court, MOORE, E. W. MARSHALL and PATTERSON, JJ., as follows:
Among the offices involved in the general election held November 7, 1933, was that of Sheriff of Allegheny County. The official returns credited Frank I. Gollmar, the then incumbent, candidate on the Republican and Citizens tickets, with 166,752 votes and John Heinz, candidate on the Democratic ticket, with 166,501 votes, a difference in favor of the former of 251 votes and he was accordingly declared elected.
A petition in behalf of the said Democratic candidate has been presented, signed by a sufficient number of qualified electors, seeking to contest the election of Gollmar, who under the statute becomes respondent in the proceeding. Violations of the election laws by the boards of 21 districts are averred in the petition, which violations are said to have resulted in an undue and illegal election with the result that "upwards of 1,500" votes were illegally credited to respondent and that upon a due and proper return the vote in favor of the contestant will exceed respondent's vote by "upward of 1,000." To this petition a motion to quash has been filed in behalf of the respondent.
We take such a motion in this character of proceeding to be of a dual aspect, partaking of the nature both of a motion to strike down the pleading and a demurrer, i. e., going to matters of formal defect as well as to the substance to determine whether or not proceeding with the contest is justified. Thus considered, we deem the motion, so far as the question of form is concerned, without merit. The jurisdictional averments are sufficiently set forth and the bond filed with corporate surety is in proper compliance with the requirements of the Act of May 19, 1874, P. L. 208, authorizing such a contest when read in connection with the Act of June 26, 1895, as to corporate sureties. Coming then to matters of substance, we are of opinion that the petition is deficient and that the motion to quash must be sustained.
In the 21 separate election districts involved, the election boards are said to have permitted such irregularities that the effect was to thwart the honest intent of the electorate of Allegheny County in its choice of a sheriff for said county. In the First District of McKees Rocks it is averred "upwards of 75 voters" were permitted to be illegally assisted; that "upwards of 100 persons" were allowed to cast ballots, although not legally qualified, and that "upwards of 25" nonregistered but otherwise qualified voters who had known Democratic affiliations were unlawfully refused permission to qualify and vote. Precisely the same averments are made as to the Second District of McKees Rocks, specifying "upwards of 65 voters" illegally assisted, "upwards of 125 persons" allowed to vote, though unqualified, and "upwards of 25" of known Democratic affiliations refused permission to qualify.
In the Second District of Rankin Borough it is alleged "upwards of 200 persons" voted on illegal tax receipts; "upwards of 50" were permitted to vote, although not qualified in that they were minors or nonresidents or not citizens; "upwards of 25 persons" of known Democratic affiliations were refused permission to make affidavits as to lost tax receipts, with additional averments of police intimidation (without naming those guilty), ejection of Democratic watchers and allowing "upwards of 150" votes to be cast while a Democratic overseer was seeking protection from the court. Like averments are made as to the Third District of Rankin Borough as to "upwards of 200 persons" in one case, "upwards of 50" in another and "upwards of 25" in another, with the allegation also that the ballots of "50 or more persons" were accepted after the polls closed. These are typical averments. In some instances there is added that persons "actively interested in election of Republican candidates" were allowed to congregate and to annoy, intimidate and harass qualified voters and to render assistance to voters not asking or requiring it, as well as giving to unqualified voters the ballots of certain qualified voters who had not voted, but in none of these instances are names of the persons involved given. In the Fourth District of the Third Ward of Pittsburgh, a certain Sidney Brunswaser, a constable, said to be "working for the Republican party candidate," gave illegal assistance, the averment failing to state, however, that such illegal assistance accrued to the benefit of respondent. This is the single example of an identified offender.
After the recitation of similar instances of fraudulent and disorderly conduct in 21 districts, the petition further avers that in the Eighth District of the Seventeenth Ward of Pittsburgh, two armed masked men of unknown identity entered the polling place and stole 183 ballots. It is averred that members of the election board and both Democratic and Republican watchers agree that of the stolen ballots, 146 were cast for the contestant and 27 for the respondent.
Recapitulating the averments that "upwards" of various numbers of votes were illegally received, the total would be, as far as we can gather from the petition "upwards of 5,740" without any allegation that any of these votes thus fraudulently cast, accrued to the benefit of the respondent or were detrimental to the contestant. From this recital of fraud the petitioners conclude and so aver that "upwards of 1,500" of the votes cast for the respondent were illegal and that a proper return would disclose contestant to have received "upwards of 1,000" votes more than the respondent. It is obviously a non sequitur.
We regard the averments deficient in particularity within the opinion of AGNEW, J., in Election Cases, 65 Pa. 20, where the general rule of certainty to a common intent was applied. Contestant contends the intent of the inquiry to be whether or not the election was undue or illegal. This is a misconception. The inquiry is as to whether or not the election of the office of sheriff was undue and illegal. We are of opinion that the petition does not plead averments which if proved would necessarily vitiate the election so far as it concerns the office of sheriff.
While pleading in election contests should not be governed by such strictness as to protect fraud, yet neither should the acts of sworn officers chosen by the people be attacked without adequate and well-defined cause: Pazdrak's Election, 288 Pa. 585; Mann v. Cassidy, 1 Brewster 11.
Contestant contends that the acts of fraud and illegality are sufficiently pleaded and cites Ayre's Contested Election, 287 Pa. 135. In that case the contestant received 665 votes, the respondent 686. The petition alleged that more than 50 ballots were fraudulently and illegally cast for the respondent. Proof of that averment of course must have resulted in contestant's election. No such evidence was adduced and the petition was dismissed. No such averment appears in the petition before us. It is stated as a pure conclusion that the effect of the various fraudulent actions of the various election boards was to increase the vote for the respondent Gollmar by 1,500 votes. How such a conclusion is justified is not made to appear. Reading Ayre's Contested Election, supra, as a whole, its effect is adverse to contestants in the case at bar. Citing Warren Boro. Election, 274 Pa. 352-3 and Cole's Election 223 Pa. 271, the court says at page 137: "A complaint of an undue and illegal election or a false return must be stated with clearness and precision and the petitioners held to due diligence to ascertain and specify the facts which, if sustained by proof, would require the court to set aside the result of the election." Approving Weaver v. Given, 6 Phila. 65, it adds that the court "will not grope in the dark or follow contestant on a fishing expedition." Likewise it is declared irregularities will not void an election even though the election officers may be subject to punishment. Citing West Mahoney Twp. Election, 258 Pa. 174; Fish's Election, 273 Pa. 410, and other authorities. The Melvin Case, 68 Pa. 333, is also invoked by contestant, but there the election, in three districts, was held at places from one-half to three miles distant from the legally constituted polling place, and that was the motivating cause in the court's rejection of the whole election.
To justify the conclusion that upwards of 1,500 votes were illegally cast for respondent, we must assume that in the election districts concerning which complaint is made, the votes said to have been illegally received were cast for respondent. The presumption is that the votes recorded for respondent by the return board were legal and if it is proposed to be proved that any of them were illegal, it is essential that the petition contain averments that these illegal votes accrued to respondent. Yet in scrutiny of the petition it nowhere appears that any of the ballots said to have been illegally received were voted for respondent. How then can the conclusion reached be justified? Contestants rely on the doctrines enunciated in Bright's Election, 292 Pa. 389, where an entire district was rejected in the contest because of illegal acts on the part of the board, and on the authority of the West Mahoney City case, supra. Reliance is likewise placed on the opinion of Mr. Chief Justice FRAZER in the Luzerne Co. Election Return, 301 Pa. 247. The last cited case involved a proceeding under the Act of April 23, 1927, P. L. 360, providing solely for a recount and is not a controlling authority as to the case at bar. The opinion, however, cites Bright's Election and the West Mahoney City case, and that part of the opinion is quoted in contestant's brief. But examination of the paper books in those two cases discloses that the petition in the Bright Case expressly averred that the illegal ballots complained of were cast for Emma Bright, the respondent, and this averment is reiterated in each paragraph of the petition. It further averred that Fred C. Fabrietti, chief of police of the Borough of Throop, coerced, intimidated and influenced voters to vote for Emma Bright and that he otherwise perpetrated the most outrageous frauds, procuring voters to cast their ballots for said Emma Bright. In the West Mahoney City case the petition averred inter alia that 50 ballots marked for contestant were counted for respondent and other ballots marked properly for contestant were not counted and still others improperly marked and which should have been rejected were counted for respondent. Obviously, therefore, the court was moved to investigation.
It is apparent, however, that contestant does not seek to purge the ballot boxes but to have the entire return in the several districts rejected. This contention is rested on the averment that the result was to increase the vote of Gollmar by 1,500. This is a conclusion without a premise. If in 21 districts it is not averred that any of the illegal ballots were cast for respondent or that contestant was deprived of any legal ballots, how then can we conclude that the total vote of respondent was unlawfully increased by 1,500?
It is evident then that contestants' only hope is to present a sufficiently impressive picture of fraud to warrant the rejection of the whole vote in the several districts. The total vote thus to be rejected is 9,095 of which 6,695 were returned for respondent and 2,400 for contestant. Mere mathematics then would result in reducing respondent's vote in the whole county to 160,057 and that of contestant to 164,101, resulting in a majority in favor of contestant of 4,044. There is no doubt that where such glaring fraud and illegality exists as to make it impossible to purge the ballot boxes with any degree of accuracy, the court may reject the whole vote of any or of several districts: Contested Election of Wheelock, 82 Pa. 297; Bright's Election, supra. But it may not be done in the absence of specification of fundamental fraud as to the contest involved. So far as appears in the petition before us, the fraud complained of in each district was not directed at the election of sheriff. Not a suggestion is made that any of the illegal votes were cast for respondent, and it cannot be so presumed. No other inquiry is involved in this contest and unless averment is made that illegal votes were counted for respondent and effected his election, a mere conclusion (not even a reasonable inference) that the result was to increase respondent's vote, unsupported by specification of a single particular, is not enough. As we have indicated, the petitions filed in the cases relied upon by contestant contained such specifications. The latest pronouncement on the subject is that of FRAZER, C. J., in Eckert's Election, 308 Pa. 375, and we believe the doctrine there declared is controlling in the present case. The opinion states at pages 378-9:
"Furthermore, there is no allegation in the petition showing for whom these ballots were cast, nor is it possible from the record to determine which candidate received any part of these votes. The burden was upon petitioners to aver expressly that the fifty-eight votes were illegal, or that a sufficient number of them were cast for Eckert to change the result of the election; this the record fails to disclose and neither fact can be presumed: Zerby v. Snare, 107 Pa. 183.
"The facts averred in other paragraphs of the petition. relate to mere irregularities in the conduct of the election, not affecting the result. As stated above, where no fraud is shown, mere irregularities in conducting an election, not affecting the result, will not require rejection of the entire vote of the election district: Ellwood City Boro. Contested Election, 286 Pa. 257; Fish's Election, 273 Pa. 410, and cases there cited."
It was never the intent of the statute nor the policy of the courts to encourage election contests without allegations of specific fraud to warrant such action. The sanctity of the ballot should be guarded jealously, and where charges are made which if sustained by proof would show the honest will and intent of the electorate to have been thwarted as to the office involved and would change the result, the court will not hesitate to direct the necessary inquiry to right the wrong, difficult and expensive though it may be. But where the contest is predicated on charges which do not specify fraud with precision and clearness, the court cannot lend itself to a seemingly futile and fruitless inquiry, engaging the parties in protracted litigation, casting doubt on the title to public office, involving the disfranchisement of many honest voters, not only as to the office involved but all the other offices voted for, and conceivably tainting the title of other elected officers unconcerned in the contest. If so many voters were illegally assisted as in this proceeding it is charged, if so many unqualified voters were permitted to cast a ballot, if intimidation was practiced, it seems to us it is not too much to require petitioners to declare that these votes were cast for the successful candidate, or to name those or some of those who gave or accepted illegal assistance, or to name those guilty of intimidation of voters and wherein intimidation was practiced. These facts are pleaded in the petitions filed in the Ayre's case, Bright's Election, the West Mahonney Twp. case and others in which the contests were permitted to proceed. The pleadings before us would seem only an effort to place the situation in such a light as to justify a voyage of exploration into a large number of ballot boxes, in the hope of an ultimate discovery. Such is not the province of a contest: Ayre's Election, supra; Weaver v. Given, supra. It may be accomplished under the Act of April 23, 1927, P. L. 360, but when a contest is once instituted, it must rest on something more than general allegations, inferences and innuendoes. If all the averments of contestants' petition were sustained by evidence, it would prove only that ballots were accepted from persons who had no right to vote, thus subjecting the boards to prosecution. If the averments were that ballots improperly marked had been counted for respondent, or that ballots marked for contestant had not been counted, it would not be necessary to particularize as to names or be precise as to numbers, for the ballots themselves would disclose the fraud. But when, as here, the illegality consists of what some persons did or did not do, specification as to the identity of such or some of such persons is essential. It is obviously impossible to meet such charges otherwise. An answer to this petition before us could be nothing but the most general denial, preparation of a substantial defense would be impossible, and no precise and definite issue would ensue. The respondent, prima facie the successful candidate, is not without some rights in the premises.
Paragraph (V) in the petition concerns only the Eighth District of the Seventeenth Ward, Pittsburgh. It alone is in our opinion sufficiently specific, but even if we concede the propriety of contestants' position as to the stolen ballots and proof of the apportionment thereof to the two candidates, it would not alter the result of the election for the office of sheriff. The return shows the election of Gollmar by 251 votes. The stolen ballots in the district in question number 183 of which 27 are said to have been voted for Gollmar and 146 for Heinz. If the stolen ballots were so regarded, the total for Gollmar would be 166,779 and for Heinz, 166,647. However, this question was considered by the return judges, sitting as a recount board, and the vote of the salvaged ballots was recorded, while no record was made of the ballots that had been stolen and never returned. Upon certiorari that action could have been reviewed. It is not properly before us on this contest.
Since the petition lacks the averments necessary to sustain a contest and since the allegation as to stolen ballots, even if proven, obviously can have no effect on the result of the election, we are of opinion that the pleading is defective in substance and that the motion to quash must be sustained.
Petition for contest quashed. Petitioners appealed.
Error assigned, inter alia, was order quashing petition, quoting record.
Charles Alvin Jones, with him John J. Kennedy, Carl D. Smith and B. B. McGinnis, for appellants.
Mead J. Mulvihill, with him B. Robert Averbach, for appellee.
We have examined the record in this case with care, and fail to find any error. The opinion of Judge PATTERSON fully and fairly reviews the facts, and correctly applies and sets forth the governing questions of law. The judgment is affirmed on his opinion.