Pennsylvania Advisory Opinions April 19, 1907: AGO 100

Advisory Opinion Text

WOLF'S ELECTION CERTIFICATE.

V. was duly commissioned April 18, 1906, as alderman of the Eighth Ward of Allegheny city. On March 19, 1906, W. instituted proper proceedings to contest the election of V. and on March 2, 1907, the quarter sessions court decreed that W. was elected and a certificate of his election held February 21, 1906, was filed in the office of the Secretary of the Commonwealth March 12, 1907. V. took an appeal to the Supreme Court, which was not a supersedeas. Held that a commission should be issued to "W.

Honorable Edwin S. Stuart. Governor of the Commonwealth.

Sir: Your letter of April 11th, 1907, referring to me for advice the certificates of election of George Wolf to be an Alderman in and for the Eighth Ward of the City of Allegheny, County of Allegheny, Pa., also copy of decree of the Court of Quarter Sessions of Allegheny County, and certificates and correspondence in relation thereto, has been received.

From an examination of the certificates and papers before me, I find the existence of the following facts:

At the election held February 21st, 1906, Charles Von Moss was returned by the Election Board as a duly elected Alderman and Justice of the Peace of the Eighth Ward of the City of Allegheny, Pennsylvania; That the said Charles Von Moss filed in the office of the Prothonotary of Allegheny County, within thirty days after the election, his acceptance of said office as required by Acts of 13th April, 1859, (P. L. 592), and 22nd March, 1877, (P. L. 12), (as per opinion of Deputy Attorney General Snodgrass, construing said acts, reported in 4 Pa. C. C, 539), and that the said Prothonotary certified the same, under his seal of office, to the Secretary of the Commonwealth, as required by said Act of 22nd March, 1877, supra.

That, on the 19th day of March, 1906, one George Wolf instituted proper proceedings in the Court of Quarter Sessions of Allegheny County at No. 79 December Term, 1905, to contest the election of the said Charles Von Moss, and that a certificate from the Clerk of said Court of Quarter Sessions of Allegheny County, under date of April 10, 1906, to the effect that said contest had been instituted, was filed in the office of the Secretary of the Commonwealth, on April 16th, 1906.

That Honorable Samuel W. Pennypacker, then Governor of the Commonwealth, under advice of the Deputy Attorney General, issued to the said Charles Von Moss, under date of April 19th, 1906, a commission as Alderman of said Ward in said city.

That on the 2nd day of March, 1907, the Court of Quarter Sessions of Allegheny County, handed down its decree in said contested election, finding that the said George Wolf had received two hundred and seventeen (217) legal votes for said office, and that the said Charles Von Moss had received but two hundred and fifteen (215) legal votes for said office; that the said George Wolf, contestant, was legally elected to said office and ordering that, "a proper certificate thereof be issued."

That on the 12th day of March, 1907, the certificate of the prothonotary of Allegheny county, under date of March 8th, 1907, was filed in the office of the Secretary of the Commonwealth, certifying that the said George Wolf was duly elected to said office at the election held on the 21st day of February, 1906.

In addition to the above facts, appearing of record, I am, informally advised by the counsel for the said George Wolf, that an appeal has been taken from the judgment of the Court of Quarter Sessions of Allegheny County, entered March 2nd, 1907, in favor of the said George Wolf as aforesaid, to the Supreme Court, but that said appeal has not been made a supersedeas, either by order of the Appellate Court or the Court below.

Under these facts you ask to be advised as to whether a commission should now be issued to the said George Wolf.

The act of 21st June, 1839, (P. L. 376), entitled, "An Act providing for the election of Aldermen and Justices of the Peace," after making provision for contesting the election, in Section 3 thereof, proceeds as follows:

"And such complaint shall not be valid or regarded by the court unless the same shall have been filed within ten (now thirty) days after the election, in the prothonotary's (now clerk's) office, and in case such complaint be filed in due time the prothonotary (now clerk) shall transmit by mail immediately to the Governor, a certified copy thereof, and in such case no commission shall be issued until the court shall have determined and adjudged on such complaint as aforesaid."

The Act of April 15, 1845, (P. L. 470) in Section 21 provides as follows:

"That in all cases where the election of the justices of the peace shall be contested, the justices then in commission shall continue to exercise and discharge the duties of their respective offices until their successors are duly commissioned and qualified."

But the Act of 26th April, 1889, (P. L. 60), entitled, "An Act providing for the issuing of commissions in cases of contested elections," is as follows:

"Section 1. Be it enacted, etc., That from and after the passage of this act, whenever it shall appear by the returns of election laid before the Governor, by the Secretary of the Commonwealth, as now required by law, that any person has been duly elected to the office of prothonotary, clerk of the courts, recorder of deeds, or register of wills, judge, or any other officer receiving a commission from the Governor, in any of the several counties of this Commonwealth, it shall be the duty of the Governor to issue a commission to such person, notwithstanding that the election of such person to any or either of said offices may be contested, in the manner now provided by law; Provided, That whenever it shall appear by the decision of the proper tribunal having jurisdiction of said contested election, that the person to whom said commission shall have issued, has not been legally elected to the office for which he has been commissioned, then a commission shall issue to the person who shall appear legally elected to said office; the issuing of which commission shall nullify and make void the commission already issued, and all power and authority under said commission first issued, shall thereupon cease and determine; Provided, further, That this act shall not in any manner affect any contest now pending."

As a Justice of the Peace of a township, borough or ward in a borough, or Alderman, as he is designated in a ward of a city, is an "officer receiving a commission from the Governor",-it was the duty of Governor Pennypacker to issue a commission to the said Charles Von Moss notwithstanding the fact that his election was contested. The purpose of the Act of 1889, supra, is to provide that the Governor shall act upon the prima facie state of affairs as they exist upon the election returns, and take such subsequent action as a change in the circumstances may demand. Hence, it is provided by said act that.

"Whenever it shall appear by the decision of the proper tribunal having jurisdiction of said contested election, that the person to whom said commission shall have been issued, has not been legally elected to the office for which he has been commissioned, then a commission shall be issued to the person who shall appear legally elected to said office; the issuing .of which commission shall nullify and make void the commission already issued."

The only reasons that might now be urged against the issuing of a commission to the successful contestant, George Wolf, are:

1. That there is no evidence that he has filed in the office of the prothonotary of Allegheny county a certificate of his acceptance of the office as required by the Act of 1877, supra., which fact is to be certified by the Prothonotary to the Secretary of the Commonwealth, prior to the issuing of a commission; and

2. Thai, by reason of the appeal from the judgment of the Court of Quarter Sessions of Allegheny County to the Supreme Court, it does not yet "appear by the decision of the proper tribunal, having jurisdiction of said contested election," that the said Charles Von Moss was not legally elected to the office.

With reference to the first reason, I am of the opinion that the filing of such acceptance is not necessary upon the part of one who is a successful contestant of the election, at least where the contest is not decided by the court until more than thirty days after the election. The acceptance of the officer is to be filed within thirty days after the election, and if an Alderman or Justice of the Peace fails to file such acceptance within thirty days after the election, it is only proper that he should be held, by implication, to have declined said office. This is the substance of the opinion rendered by Deputy Attorney General Snodgrass, 4 Pa. C. C, 539.

In the case in hand, the said George Wolf could not possibly have filed such acceptance within thirty days after the election. That he desires to accept' the office is evidenced by the fact that he has instituted a contest therefor, and carried it to a successful conclusion in the court below. It would be manifestly unjust to deprive him of the fruits of this victory by refusing him a commission because he has not done something it was not within his power to do.

With reference to the second reason, it may be stated that the appeal of the said Charles Von Moss, from the judgment of the Court of Quarter Sessions of Allegheny County, must have been taken subject to the provisions of Section 12, of the Act of 19th May, 1897, (P. L. 67), which provides as follows:

"In appeals in contested election cases, the appeal shall not operate as a supersedeas, unless so ordered by the court below, ,or the Appellate Court, or any judge thereof, either by general rule, or special order, and upon such terms as may be required by the court or judge granting the order of supersedeas."

As above stated, I am informally advised that the appeal was not made a supersedeas.

"An appeal is a mere incident to an action; a judgment is the result or consequence of the action, and the appeal is the mode of seeking to have the judgment of the inferior court corrected by the Appellate tribunal. An appeal is the commencement of a new proceeding in an action after its determination by the rendition of a final, judgment, and is distinct from that which results in its recovery."

A. & E. Ency. of Law, Vol. 2, page 426, Note.

A supersedeas has the effect of suspending further proceedings in relation to a judgment, but it does not, like a reversal, annul the judgment. It is preventive in its nature, but does not set aside what the trial court has already adjudicated. In the absence of a supersedeas there is nothing to prevent the enforcement of the judgment of the court below. There is nothing in the Act of 1889 to indicate that the Governor is to await the final disposition of the contest in an appellate court before issuing a commission.

I am, therefore, of the opinion that the taking of the appeal should' not in any way affect your action on the facts as they existed after the rendition of the judgment of the Court of Quarter Sessions of Allegheny County; and as that judgment is, "the decision of the proper tribunal having jurisdiction of the contested election," deciding that the said George Wolf has been legally elected to said office, a commission should now be issued by you to him.

Very truly yours,

J. E. B. CUNNINGHAM, Asst. Deputy Attorney General.