Pennsylvania Advisory Opinions July 21, 1939: AGO 291 (July 21, 1939)

Advisory Opinion Text

Elections—Municipal elections—Office of judge of court of record—Duties of Secretary of the Commonwealth—Act of June 3, 1939, P. L. 1333.

The Secretary of the Commonwealth may not after the tenth Tuesday preceding any primary designate by written notice the office of judge of a court of record as an office for which candidates are to be nominated in any election district at the ensuing primary and to be elected at the succeeding November election.

If the office of a judge of a court of record is not vacant on the tenth Tuesday preceding any primary in any odd-numbered year, and is not designated by the county board of election in a notice filed with the Secretary of the Commonwealth on or before the tenth Tuesday preceding a primary election in an odd-numbered year designate that office as one for which a candidate is to be nominated in the judicial district at the ensuing primary election, the Secretary of the Commonwealth may not lawfully receive and file a nomination petition for any candidate for that office in that year.

Honorable S. M. R. O'Hara, Secretary of the Commonwealth, Harrisburg, Pennsylvania.

Madam: This department is in receipt of your letter of recent date requesting an opinion upon the following statement of facts:

In this year a primary election will be held on September 12, 1939, for officers to be elected at a municipal election to be held November 7, 1939.

On July 5, 1939, (that being the tenth Tuesday preceding the primary election), pursuant to the provisions of Article IX, Section 905 of the Pennsylvania Election Code approved June 3, 1937, P. L. 1333 (25 PS §286 et seq.), the Secretary of the Commonwealth sent to the County Board of Elections in Fayette County a written notice designating all the offices for which candidates are to be nominated at the said primary election. This notice was preceded by a canvass by the Secretary of the Commonwealth and by the County Board of Elections of Fayette County as prescribed by section 903 and section 904, respectively, of the said code.

On July 6, 1939, Honorable Harry A. Cottom, Judge in the Fourteenth Judicial District, comprising Fayette County, died.

On July 10, 1939 the Secretary of the Commonwealth was requested to certify the office of a judge of a court of record in the fourteenth judicial district as an office for which nominees will be elected at the said primary election and by such certification permit the county board of elections to advertise that office as being open for nominations in the said primary election. This you refused to do.

Specifically, you desire to be advised whether you may lawfully rule as follows:

1. The Secretary of the Commonwealth may not, after the tenth Tuesday preceding any primary, designate by written notice the office of judge of a court of record as an office for which candidates are to be nominated in any election district at the ensuing primary and to be elected at the succeeding November election.

2. If the office of a judge of a court of record is not vacant on the tenth Tuesday preceding any primary in any odd-numbered year, and is not designated by the county board of elections in a notice filed with the Secretary of the Commonwealth on or before the tenth Tuesday preceding the fall primary in an odd-numbered year, and further if the Secretary of the Commonwealth did not, on or before the tenth Tuesday preceding a primary election in an odd-numbered year, designate that office as one for which a candidate is to be nominated in the judicial district at the ensuing primary election, the Secretary of the Commonwealth may not lawfully receive and file a nomination petition for any candidate for that office in that year.

In determining the answer to your inquiry the following provisions of the Constitution of Pennsylvania, as well as the pertinent sections of the Pennsylvania Election Code must be considered. Article VIII, section 3 provides:

* * * All elections for judges of the courts for the several judicial districts * * * for regular terms of service, shall be held on the municipal election day; namely, the Tuesday next following the first Monday of November in each odd-numbered year, but the General Assembly may by law fix a definite day, two-thirds of all the members of each House consenting thereto; provided that such elections shall be held in an odd-numbered year * * *. (Amendment of November 4, 1913.)

Article IV, section 8 of the Constitution provides:

* * * He (The Governor) shall have power to fill any vacancy that may happen, during the recess of the Senate, * * * in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy, in an elective office, a person shall be chosen to said office on the next election day appropriate to such office according to the provisions of this Constitution, unless the vacancy shall happen within two calendar months immediately preceding such election day, in which case the election for said office shall be held on the second succeeding election day appropriate to such office * * * . (Amendment of November 2, 1909.)

Article V, section 25 of the Constitution of Pennsylvania, provides:

Any vacancy happening by death, resignation or otherwise, in any court of record, shall be filled by appointment by the Governor, to continue till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.

The apparent conflict between the latter two sections is well explained in Buckley v. Holmes, et al., 259 Pa. 176 (1917), where it is held that the specific provisions in the judiciary (Fifth) article for filling vacancies in courts of record, although modified by the amendment of November 4, 1913 requiring elections for judges of the several judicial districts to be held on the municipal election day, has not been changed by the amendment of November 2, 1909 (article IV, section 8); and even if there were an irreconcilable conflict between it and the general provisions of section 8 in article IV, a cardinal rule of construction requires that the specific provisions of article V, section 25 must prevail.

With these basic constitutional provisions in mind let us, then, examine the pertinent requirements of the Pennsylvania Election Code, the machinery set up by the legislature to effectuate the same. It is apparent that this act is a most comprehensive piece of legislation and, as indicated in section 1 thereof, is a codification, revision and consolidation of the laws relating to general, municipal, special and primary elections, the nomination of candidates, primary and election expenses and election contests.

Article VIII, section 801 (b) provides:

Any party or political body, one of whose candidates at either the general or municipal election preceding the primary polled at least five per centum of the largest entire vote cast for any elected candidate in any county, is hereby declared to be a political party within said county; and shall nominate all its candidates for office in such county * * * in accordance with the provisions of this act. (Italics ours.)

The "provisions of this act" pertinent to this discussion are found in article IX thereof.

Section 902 provides:

* * * All candidates of political parties, as defined in section 801 of this act, for the offices of United States Senator, Representative in Congress and for all other elective public offices within this State, * * * shall be nominated, * * * at primaries held in accordance with the provisions of this act and in no other manner. * * * (Italics ours.)

Section 905 provides:

Secretary of the Commonwealth to Notify County Boards of Certain Nominations to Be Made.—On or before the tenth Tuesday preceding each primary, the Secretary of the Commonwealth shall send to the county board of each county a written notice designating all the offices for which candidates are to be nominated therein, or in any district of which such county forms a part, or in the State at large, at the ensuing primary, and for the nomination to which candidates are required to file nomination petitions in the office of the Secretary of the Commonwealth, including that of President of the United States; and shall also in said notice set forth the number of presidential electors, United States Senators, Representatives in Congress and State officers, including senators, representatives and judges of courts of record, to be elected at the succeeding November election by a vote of the electors of the State at large, or by a vote of the electors of the county, or of any district therein, or of any district of which such county forms a part.

Section 906 provides:

Publication of Notice of Officers to Be Nominated and Elected.—Beginning not earlier than nine weeks, nor later than eight weeks before any regular Spring or Fall primary, the county board of each county shall publish in newspapers, as provided by section 106 of this act, a notice setting forth the number of delegates and alternate delegates to the National convention of each party who are to be elected in the State at large at the ensuing primary, and the number of delegates and alternate delegates who are to be elected at the said primary in said county, or in any district of which said county or part thereof forms a part, and also setting forth the names of all public offices for which nominations are to be made, and the names of all party offices, including that of members of the National committee, if any, and State committee, for which candidates are to be elected at said primary in said county, or in any district of which such county or part thereof forms a part, or in the State at large. Said notice shall contain the date of the primary, and shall be published once each week for two successive weeks.

"The tenth Tuesday preceding" the primary election to be held September 12, 1939, having passed, and the vacancy under discussion not having occurred on or prior to that date, it is obvious that the provisions of section 905, supra, are impossible of compliance. The sole question for determination, therefore, is whether or not the provisions of the above are mandatory. If they are, the questions must be answered in the affirmative.

Although there has been no judicial construction of the pertinent sections of the code hereinbefore referred to, the exact questions previously have been before the courts of this Commonwealth. Section 3 of the Uniform Primaries Act, approved February 17, 1906, P. L. 36, contained the following provisions:

(a) On or before the ninth Saturday preceding the Spring primary, the Secretary of the Commonwealth shall send to the county commissioners in each county a written notice, setting forth the number of Congressmen and officers of the Commonwealth, not nominated by State Conventions, to be elected or voted for therein at the next succeeding general election.

(b) Upon receipt of such notices, and beginning within one week thereafter, such county commissioners shall publish * * * the names of all offices for which nominations are to be made or candidates for the party offices to be elected, within the county, at the ensuing primary, at least once each week for three successive weeks, in two newspapers * * *.

It was further stipulated, in section 12 of that act, that vacancies "happening or existing after the date of the primary may be filled in accordance with the party rules, as is now or hereafter may be provided by law."

In Commonwealth v. Blankenburg, 218 Pa. 339 (1907), it appeared that the primary election was on June 1, 1907. The ninth Saturday preceding this date was, therefore, March 30, 1907. Prior to the latter date the Secretary of the Commonwealth notified the County Commissioners of Philadelphia of the vacancies in office to be nominated for at the primary, including, inter alia, two judges of the court of common pleas No. 1. On April 16, 1907, after the publication had been started, the Secretary of the Commonwealth notified the commissioners that an additional vacancy had occurred in common pleas No. 1 by the resignation of one of the judges and directed them to change their publication accordingly. In a mandamus proceeding against the commissioners, the Supreme Court affirmed the lower court's refusal of the writ. The Supreme Court, at pages 340, 341, 342 and 343, said:

The act of 1906 was passed to put an end to this system. Its first requirement is uniformity throughout the state, and in the first section it is enacted that it shall be known as the uniform primaries act. It provides that there shall be two primary elections in each year, one on the fourth Saturday before the February election, to be known as the winter primary, the other on the first Saturday of June (except in the years of presidential elections) to be known as the spring primary. These dates are fixed by the statute, and there is no claim by anyone that there is any discretion in anybody to alter them. * * *

The exact question is whether the provisions of section 3 as to time are mandatory. We do not understand that any claim is made that any of the requirements themselves are not mandatory, but that if circumstances are such that convenience can be served and the substance of the requirements obeyed, the direction as to time may be treated as directory only.

This contention is not tenable. As already said the things to be done are a series of prescribed steps for a prescribed purpose. The terminus ad quern whereto they all lead is the spring primary whose date is fixed and immovable. The initiatory step of the series is the notice by the secretary of the commonwealth to the county commissioners, and the next is the publication. For these the statute fixes in positive terms the exact time, "on or before the ninth Saturday preceding the spring primary," for the notice, and the publication to begin "within a week" after receipt of the notice, and to be "at least once each week for three successive weeks." The argument is that the substantial requirement is a reasonable time for the electors and others for the purpose indicated, and if that is given, the intent of the statutes is fulfilled. But reasonable time is matter of opinion on which there may be large differences. * * *

If there were any doubt of this on the general construction of the act the provision of clause three of section two would effectually settle it. "No . . . candidates for the public offices herein specified (shall) be nominated in any other manner than as set forth in this act." * * *

The first notice from the secretary and the publication by the commissioners were in strict accordance with the law under the facts as they then were, and the proceedings were thus regularly commenced under section three. The provisions of that section as to time being mandatory the third vacancy occurred too late for the nomination to be made under that section and it necessarily, therefore, falls under the alternative provisions of section twelve.

In Commonwealth ex rel. Kinsey v. County Commissioners, 16 District Reports 341 (1907), arising out of the same situation presented in Commonwealth v. Blankenburg, supra, Judge von Moschzisker, then judge of the Court of Common Pleas of Philadelphia County, said:

Provisions in statutes regulating the duties of public officers and specifying the time for their performance have been construed as directory rather than as mandatory on many occasions where the nature of the thing to be done or the phraseology of the statute did not show the evident intent to be otherwise; but where the act to be executed is an integral part of a general system wherein the time prescribed for its performance is essential for the proper carrying out of the whole system, then the provision as to time should be held to be mandatory and not merely directory.

A strict construction of the act in the sense we have in mind simply means that when nominations are to be made thereunder they must be made in compliance with its essential provisions.

The language of Judge Ferguson, in a concurring opinion is likewise highly significant:

When a candidate for a state office is to be nominated it is the duty of the Secretary of the Commonwealth to certify to the County Commissioners to that effect at least nine weeks before the first Saturday of June. This latter date is fixed, and there is no power in any officer to alter or change it. * * *

* * * He may send his certificate as long before that date as he elects, and if circumstances should bring about an unexpected vacancy before that date there is no reason why an additional certificate should not be forwarded. But the certificates are of vacancies for which an election must be had in the November following, which are known to the Secretary of the Commonwealth at the time he makes his certificate. If the time for such certification is extended and a doctrine of reasonable construction of the act is applied, then the whole delicate system is disarranged. * * *

These cases were cited with approval in Commonwealth ex rel. Meyers v. King, 6 D. & C. 155 (1924); Supper v. Stauss, 39 Super. Ct. 388 (1909) and Commonwealth ex rel. v. Lenhart, 241 Pa. 129 (1913).

Under the authority of the cases above cited, it is plain that the provisions of the Election Code prescribing the procedure prerequisite to the nomination of party candidates and primary elections are mandatory. The vacancy caused by the death of Judge Cottom on July 6, 1939 not having existed at the time the Secretary of the Commonwealth was required to send to the county board of elections a written notice designating all the offices for which candidates are to be nominated, the office of judge of a court of record in Fayette County was and could not be included in such notice; and the Secretary of the Commonwealth is clearly prohibited by the code from sending any other notice after the tenth Tuesday preceding the primary election even where, as in this case, the next day a vacancy existed in an office not included in the original list.

In view of the above, therefore, we are of the opinion that you may lawfully rule that,

(1) The Secretary of the Commonwealth may not after the tenth Tuesday preceding any primary designate by written notice the office of judge of a court of record as an office for which candidates are to be nominated in any election district at the ensuing primary and to be elected at the succeeding November election.

(2) If the office of a judge of a court of record is not vacant on the tenth Tuesday preceding any primary in any odd-numbered year, and is not designated by the county board of elections in a notice filed with the Secretary of the Commonwealth on or before the tenth Tuesday preceding the fall primary in an odd-numbered year, and further if the Secretary of the Commonwealth did not on or before the tenth Tuesday preceding a primary election in an odd-numbered year designate that office as one for which a candidate is to be nominated in the judicial district at the ensuing primary election, the Secretary of the Commonwealth may not lawfully receive and file a nomination petition for any candidate for that office in that year.

Very truly yours,

Department of Justice,

Claude T. Reno, Attorney General.

Fred. C. Morgan, Deputy Attorney General.