In re Referendum in Millcreek Township

The petition for the recount of the ballots in the said voting district alleges fraud and error in the computation of the votes cast on the referendum with reference to conducting, staging motion pictures, etc., on Sundays, and in the marking of the ballots.

*336Petitioners for the recount have deposited the sum of $50 in accordance with the act of assembly.

The vote in said election district as returned and computed by the county return board, on the said referendum submitted to the voters at the election on November 4th, was 246 voting “yes” and 197 voting “no” by placing the cross in the blank space following the' word “yes” or “no”, as directed by the ballot. The vote as now tabulated upon the reopening of the ballot box and the returns is 245 voting “yes” and 196 voting “no” by placing an X in the space provided and directed by the ballot. In addition we find that five voted “yes” by writing the word “yes” in the space provided following the printed word “yes” and that 13 voted “no” in the space following the word “no” by writing in the word “no”.

While the Act of June 22, 1935, P. L. 446, makes no specific provision with respect to marking such ballots, yet in section 4 it does provide that “Any such election shall be governed by the election laws of the Commonwealth . . .”. In the absence of any special direction as to the manner in which the votes should be marked, our opinion is that the expressed wish of the voter in marking the ballot “yes” or “no” should not be disregarded. However, there is no evidence of fraud or substantial error in the recounting of these ballots, although it appears that the ballots cast were returned to the county commissioners in a sealed envelope together with the unused ballots and not in the ballot box. This however was an irregularity upon the part of the election officials in said township and the voters cannot be disfranchised for such irregularity in the absence of fraud. The $50 deposited by petitioners is hereby declared forfeited to the County of Lebanon, in accordance with the act of assembly.