#### Lackawanna County Election Case. Durkin’s Appeal.

*Elections*— Primary *elections*— Error *in counting votes*— Peti*tion for recount*— Time *for 'filing*— Act *of July 12, 1918, P. L. 719, Section 15.*

Where petitions filed under the Act of July 12, 1913, P. L. 719, Section 15, for the opening of the ballot-boxes and a recount of the votes cast at a primary election, averred error or fraud in the computation of the vote, the dismissal of the proceedings on the ground that the petitions -which were filed four days after the computation by the county commissioners were filed too late, was erroneous.

Argued Oct. 15,1915.

Appeal, No. 378, Jan. T., 1915, by P. H. Durkin, from orders of C. P. Lackawanna Co., Nov. T., 1915, Nos. 52, 53, 54 and 55, dismissing petitions for opening of ballot-boxes and recount of votes In re: Computation of ballots of Primary Election for the office of County Controller, on the Democratic Ticket, in the County of Lackawanna.

Before Brown, C. J., Mestrezat, Potter, Stewart and Frazer, JJ.

Reversed.

Petition for the opening of ballot-boxes and for a recount of votes.

From the record it appears that on the 21st day of September, 1915, a primary election was held in the several election districts of Lackawanna County, for the nomination on various political party tickets, of candidates whose names should appear on the printed ballot to be used at the following general election.

*113Inter alia, a candidate for the office of County Controller, was voted for by the several political parties, for, the purpose above stated.

The three rival candidates' for the nomination of county controller, on the Democratic ticket, were P. EL Durkin the appellant in this case, William Luxemburger and P. Callahan, and these three men were voted for in each and every election district in said Lackawanna County, on said September 21, 1915.

In the 2d war$ of the Borough of Archbald the open returns showed that P. H. Durkin received at that election, 219 votes and his rival William Luxemburger received 47 votes. The sealed returns as computed by the county commissioners showed that P. EL Durkin received 47 votes and his rival, William Luxemburger received 219 votes.

In the 2d district of the 2d ward of Dunmore under like conditions, the said P. EL Durkin received over 46 votes and his rival William Luxemburger received 21 votes. The returns produced to the County Commissioners as announced by them, set forth that P. EL Durkin received 46 votes and his rival William Luxemburger received 121 votes.

In the 1st district of the 3d ward of Dunmore, under like conditions, the said P. H. Durkin received 97 votes and his rival William Luxemburger received 15 votes. The returns as announced by the county commissioners set forth, that P. EL Durkin received 53 votes and his rival William Luxemburger received 59 votes.

In the 3d district of the 6th ward of Dunmore, P. H. Durkin received 195 votes and his rival William Luxemburger received 1 vote. The returns as announced by the county commissioners set forth that P. H. Durkin received 95 votes and William Luxemburger received 101 votes.

The computation of the above vote was made on the 25th of September, 1915, and the result announced same day.

*114October 16, 1915:

On the 29th day of September, 1915, affidavits of five qualified electors residing in the several election districts above mentioned were properly executed and filed, in conjunction with their petitions, averring the facts above as above specified and asking for a recount of the ballots cast in said districts at the primary election held therein on the 21st day of September, 1915. Same day the sheriff was directed to bring in the ballot boxes of said districts and safely and securely keep the same until the further order of the court. This order was returned on the 1st day of October, 1915, “Executed as within commanded, September 30, 1915.”

Argument before the full court was set down for October 2, 1915, counsel appeared for William Luxemburger, and asked to have the petition dismissed, giving as his reason that the petition for recount was filed too late, and after hearing, the petition was refused and the court directed the sheriff to return to the person from whom he received the boxes impounded, upon the petition of Durkin.

The court refused the petitions. P. H. Durkin appealed.

*Error assigned*was the order of the court.

*R. H. Holgate,*for appellant,

R. *J. Manning,*for appellee.

Per Curiam,

The petitions presented to the court below by certain qualified electors of certain election districts in the County of Lackawanna, were in the form prescribed by the 15th section of the Act of July 12, 1913, P. L. 719, and the order of the court of September 30, 1915, directing the ballot boxes to be safely and securely kept by the sheriff until the further order of the court was properly made. The subsequent order of the court made *115October *2,*1915, dismissing the proceedings instituted by tbe petitioners because their petitions had been filed too late — four days after the computation by the county commissioners — was improperly made for nothing in the statute sustains the reason given for dismissing the proceedings.

The said order of October 15, 1915, is reversed, and it is now ordered, adjudged and decreed that the record be remitted, with direction to the court below to hear and determine all matters pertaining to the frauds alleged in the said petitions and to make such decree as right and justice may require.