¶1Dissenting Opinion by
¶2On the evening of November 4, 1952, the unofficial election returns in Luzerne County, with one precinct *492missing, showed Edward J. Bonin, candidate for representative in Congress from the Eleventh Congressional District to have a lead of 1,262 votes over Daniel J. Flood, the incumbent congressman. November 5, 1952, a recheck of the open returns revealed Bonin leading over Flood by 857 votes. The official computation on November 7, 1952, declared Bonin elected with a majority of 834 votes.
¶3On November 8,1952, Congressman Flood petitioned the Court of Common Pleas of Luzerne County for a recanvass of all the voting machines in Luzerne County. The Motion Judge, to whom the petition was presented, directed the petitioner to notify the county commissioners, serving as the Board of Elections, of the petition. On November 10, the Board met but failed to take action on the motion made by County Commissioner Edward M. Carroll, for a recount of the voting machines used in the election.
¶4On November 14, the Court granted a rule on the County Commissioners to show cause why the original petition should not be amended to read that an appeal was being taken from the refusal of the County Board of Commissioners to canvass the congressional vote of Luzerne County, assigning for error, that the refusal wa,s “arbitrary, capricious and bias[ed].” On November 19, the Court sustained the motion of the county commissioner to quash the appeal. From this action of the Court of Common Pleas, an appeal has been taken to this Court.
¶5In his petition to the Court of Common Pleas from the negative action of the Board of Commissioners the petitioner averred that in various districts throughout Luzerne County the totals appearing on the voting machines had been disregarded in transferring the indicated vote to the return sheets. The petition averred further that the votes “taken from the election machines *493for the office of United States Representative from Luzerne County would change and alter the results of the aforesaid election.” Further, “that numerous and various instances of fraud and irregularity occurred at the polling places on the election held November 4, 1952, the honest results of which can only be ascertained by the opening and the computing of the votes as they appear on the various voting machines.”
¶6The petitioner also averred that the sealed returns collected on November 4th and 5th were insecurely deposited in the basement of the Luzerne County courthouse which was accessible to persons not authorized to touch or see the returns.
¶7If the averments in this petition are true, and they have not been denied, grave doubts arise as to whether Bonin was duly elected Congressman from the Eleventh Congressional District. The margin of victory in the official returns was so narrow that if anywhere along the line 429 votes were improperly recorded the results would show Daniel F. Flood winner of the congressional election instead of Edward J. Bonin.
¶8The lower court refused to hear the petition on the ground that the Board of Elections had made no order or decision from which an appeal would lie, but this surely begs the question. The fact that the Board refused to act was a decision. What else was it? If we were to apply the reasoning of the lower court to general court procedure it would mean that appeals could be taken only from affirmative actions of tribunals, never from negative actions. Wherever a person asks, and a refusal follows, the refusal is a decision. In Pennsylvania Publications Inc., Appel. v. Pennsylvania PUC, 152 Pa. Superior Ct. 279, 300 (reversed for other reasons, 349 Pa. 184) the Superior Court said: “Where a court or administrative body is asked to take action, a tie vote is equivalent to a refusal of the action.”
¶9*494If a tie vote is equivalent to a refusal of the action, a fortiori no action at all is a refusal sans culotte.
¶10In the case of Pittsburgh v. Pennsylvania Public Utility Commission, 171 Pa. Superior Ct. 391, 395, the Superior Court held that even where there is no order pro forma there must be an order de facto: “Appellate review of Commission action cannot be precluded by subterfuge or by the form in which such action is evidenced. Moreover, administrative action cannot violate the fundamental principles of fairness any more than it can impinge on any constitutional right.”
¶11The majority opinion finds in Section 1407 of the Election Code a supposedly insuperable wall which prevents the appellant from reaching this Court with his complaint that he has been denied an impartial revelation of the vote cast in his behalf at the election on November 4, 1952.' Section 5, Article I of the Pennsylvania Constitution will batter down any statutory Avails which confines a citizen seeking an authoritative determination of a “free and equal” election.
¶12It is inconceivable to me that the darkness of ignorance should continue to enshroud the page on Avhieli is written the decision of the people of Luzerne County when a simple raising of the blind would flood the room with the light of knowledge. Who is to be harmed by an opening of the voting machines as petitioned for by the appellant? What expense would be involved in so simple an operation as lifting the covers of the machines to discover Avhat the registering counters have recorded? What inconvenience would the election officials and employees suffer in this simple manual act?
¶13In Carbondale’s Election, 280 Pa. 159, it Avas argued against .the appeal that the statutory period for an election contest had expired and that there was no charge by a qualified elector of palpable fraud or error. But in rejecting this argument, this Court said: *495“Having in view that the purpose in holding elections is to register the actual expression of the electorate’s will, it is to our minds impossible of conclusion, if justice is to be done and the true result of the poll be made manifest, where the return made by election officers is mistaken, inconclusive, manifestly erroneous or palpably fraudulent, that the computing judges sitting for the purpose of certifying the correct outcome of the balloting have not the power, indeed the duty, to go into the ballot box itself to see what was the true result. If a return is in such shape either from mistake, ignorance or fraud that in fairness nothing can be predicated upon it, certainly it could not be properly determined, with the evidence in the ballot box as to what was the true vote, that the court sitting to make that determination must find its hand palsied when it would raise the lid of the box to obtain the answer from its contents, otherwise impossible of answer, with the resulting wrong that those whose wish had been expressed in the receptacle are disfranchised, unless some legislative enactment forbids.” (Emphasis supplied)
¶14By what rule of logic or fairness is the hand in this case palsied from lifting the covers of the voting machine? It is not fair or reasonable to Edward J. Bonin any more than it is to Daniel J. Flood that he should be declared elected upon a return which is questioned. To send a representative to Congress with his very authority under a cloud of uncertainty is to handicap him in the capable and authoritative discharge of his congressional duties.
¶15While statutory prohibitions cannot, of course, be lightly set aside, this Court has already stated that such limitations “are not conclusive when good cause is shown.” (Koch Election Case, 351 Pa. 544) The very purpose of election laws is to secure “freedonl of choice *496and to prevent fraud and corruption; to obtain a fair election and an honest election return. . . The election laws should not be so interpreted as to defeat the very object of their enactment.” 29 C.J.S. Elections, Section 7, page 27.