The opinion
Dissenting Opinion by
Mr. Justice Jones:
On the former appeal in this same matter ( 351 Pa. 544 , 41 A. 2d 657 ), we afforded the appellant
equitable relief
by granting him leave to appeal
nunc pro tunc
from an alleged erroneous computation by the Return Board of Carbon County to the end that, should a reeanvass of the ballots warrant it, the Board’s return
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might be corrected accordingly and the certificate of election, which it had issued to the appellant’s opponent, vacated. The time fixed by law for such an appeal had expired before the appellant filed his petition in the court below. We acted as above stated in order that what appeared to be a clear clerical error in the tabulation of the votes respectively received by the appellant and his opponent could be correctly recorded and the will of the electorate, as reflected by the ballots, thereby ascertained and honored. However, it now appears from a later decision by this court that equity does not have jurisdiction to grant relief in an election case on the prayer of one who. has not followed the exclusive procedure prescribed by law for action in such regard: see
Thompson v. Mor
rison,
Secretary of
Commonwealth, 352 Pa. 616 , 44 A. 2d 55 .
Whether or not our former decision in this matter was correct, another and far different question intrudes on this appeal. The court below, pursuant to our former order, entertained the appellant’s
nunc pro tune
appeal and entered upon a hearing for the recount of the ballots. It then developed that they had been destroyed in 1944, as allowed by law, no application having been made for their preservation beyond the eleven-month period following the election: Sec. 309 of the Act of June 3,1937, P. L. 1333, Art. Ill (25 P.S. § 2649). The appellant thereupon offered in evidence the tabulation of a recount had on December 8, 1943, upon his petition under Sec. 1701 of the Act of 1937, supra (25 P. S. § 3261). The court below sustained the appellee’s objection to the offer on the ground that inasmuch as the recount had not been had within five days of the completion of the certification of the return of the vote cast at the election, the recount was legally inefficient to change the return already made. That ruling, I believe, is in strict compliance with legislative mandate.
Paragraph (a) of Sec. 1703 of the Act of 1937 provides that, if, upon the opening of a ballot box under
*629
Sec. 1701 “before tbe certification of all the returns of the county, and, in ho event, later than five (5) days after the completion ... of all the returns ... by the county board, and the court shall discover- therein any fraud or error, the court shall correct, compute and certify to the county board the votes justly, . . . and the county board shall correct accordingly any entries previously made in the returns . . . not yet certified.” Paragraph (b) of Sec. 1703 further provides that “. .
. no such order or decision [upon a recount of ballots under Sec. 1701] shall affect the official returns of any election district, unless a petition to open the ballot boxes . . . shall have been presented before the certification of the returns ... by the county board ...
.” (Emphasis supplied.)
However, assuming that the effect of the allowance to the appellant of a right to appeal
nunc pro tunc
from the computation was to render inoperative, for all present purposes, the legislative directions above-cited, it is my opinion that the tabulation obtained from the recount of December 8, 1943, was otherwise inconipetent for the purpose for which it was offered. The hearing was concerned with a recanvass, computation and' return of the votes cast as disclosed by the
ballots;
and the tabulation did not qualify in any sense as secondary evidence of the
ballots.
It was at best but a computation of the number of marks appearing on the ballots opposite the respective names of the contending nominees for the office of school director. But, a ballot discloses far more essential to a recount than is shown by a tabulation of the vote for a particular office. A ballot contains'the evidence of its own validity or invalidity in general. It must have been marked not otherwise than by a pencilled cross or crosses within an appropriate square or squares. It may not contain the ballot-number stub of the elector and remain valid. Nor may it have any other distinguishing marks capable of identifying the elector.' One defect on a ballot (not in respect of the vote for the
*630
particular
office which the appellant caused to be recounted) might invalidate that ballot in its entirety. It is manifest, therefore, that unless the ballots or facsimiles of them can be produced, it is not possible to have what can be thought to be a recount of the ballots; and such a recount was what the allowance of an appeal
nunc pro tunc
in this case contemplated. That does not mean that, upon a recount for a particular office, the votes for all offices must be retabulated. But, if there is an invalidity in any part of a ballot, its effect on the whole ballot must be considered and correctly reflected. The illustration given in the majority opinion as to photostatic copies of ballots goes directly to the point here made. If such copies of the ballots were available and the ballots themselves had been lost or destroyed, the copies
would
constitute secondary evidence of the ballots and, as such, be admissible in the circumstances supposed. But, figures cannot in my opinion be said to be secondary evidence of the ballots.
The importance of the question here involved ought not be obscured by the apparent merit of the appellant’s contention that more votes were cast for him than for his opponent. The principle which allows for the reconstruction of what ballots are supposed to show by making use of figures as to the number of ballot markings for a given office, which figures were obtained upon a recount that never legally achieved an effective role in the
official
canvass and return of the vote, is fraught with such possibilities of danger to the integrity of the ballot that I find myself unable to concur in the ruling now made by the majority.
If the appellant received a majority of the votes cast for the office, he should, of course, have been given the certificate of election. But, it is not to be overlooked that he has been far less than alert in protecting his rights. The equity which he stressed upon his application for leave to appeal
nunc pro tunc
lay entirely in what others had failed to do in the discharge of their
*631
official duties aud without consideration for -what
he
could have done but did not do. His most crucial dereliction-was, perhaps,, his failure to have the ballots preserved, as he could easily have done by an application to the court for an order to that effect: see Sec. 309 of the Act of 1937.
.1 should affirm the judgment of the court below.