
    In re Election in Third District of Ransom Township
    
      Walter W. Kohler, for petitioners.
    
      Wallace G. Moser, contra.
    
      May 15, 1940.
   Leach, P. J.,

The petition of James T. Rowlands claimed that the returns of the above Third District of Ransom Township were incorrect. At the hearing it appeared that, in some unexplained manner, the ballot labels E and P became transposed so that ballot label E appeared where ballot label F should have been and ballot label F appeared where ballot label E should have been.

The majority of the electors followed the provision of the Pennsylvania Election Code of June 3, 1937, P. L. 1333, sec. 1216 (d), which provides that votes cast for candidates at the primary election should be cast in the following manner:

“At primaries, he shall vote for each candidate individually by operating the key, handle, pointer or knob, upon or adjacent to which the name of such candidate is placed.”

Two voters, observing that the strips E and F were misplaced, were offered to prove that they cast two votes in a vacant space where the no. 4 Rowlands should have been. They claimed that the said votes were for Rowlands. We are not able, sitting as a return board, to go into the question of how a person intended to vote or whether the votes were fraudulent. We can only take the returns as we find them, unless there is fraud which vitiates the return. It may be that, on proper petition against this entire district, it might be thrown out under article XII, sec. 1209 (2), of the Pennsylvania Election Code of 1937, supra, because the proper action for the election officers should have been to forthwith notify the custodian not to use the machines until the custodian or other person authorized by the county board should have supplied ballot labels as prescribed.

The remedy of the petitioner is an election contest: Kline v. Eagen, 314 Pa. 23, and cases there cited.

Now, May 15, 1940, the petition to modify the returns of the Third District of Ransom Township, Lackawanna County, is dismissed at petitioner’s cost.  