Pennsylvania Advisory Opinions September 30, 1908: AGO 104

Advisory Opinion Text

NOMINATION PAPERS .

Vacancy in office of Representative in the General Assembly where a party entitled to nominate candidates as a political party at the primaries fails to make a nomination for the office of Representative in the General Assembly at a regular primary election, there is not a vacancy, which may thereafter be filled in accordance with the party rules.

Honorable Robert McAfee, Secretary of the Commonwealth: Harrisburg, Pennsylvania.

Sir: This Department is in receipt of your communication of September 28, 1908, stating that you are in receipt of a certain nomination paper, purporting to nominate Jacob D. Utech, as a candidate of the Prohibition party for Representative in the General Assembly, for the Sixth Legislative District of the County of Allegheny, to be voted for at the ensuing election in November, which paper is in proper form, bears the requisite number of signatures, is properly Verified, and bas been received within the limit of time allowed for filing nomination papers for said election.

You further state, in said communication, that an examination of the election returns of the last general election discloses that the Prohibition party then polled in said legislative district a sufficient number of votes to entitle it to nominate candidates as a political party at the primary election held in April of this year.

Yon further state that the regular' primary election was held in said district on April 11, 1908, but that the said Prohibition party did not then nominate a candidate for the office of Representative in the General Assembly.

It is also stated in your communication that all of the provisions of the Uniform Primaries Act of 17th February, 1906, (P. L. 36), with regard to notices, advertisements, &e., were complied with by your Department and by the County Commissioners of Allegheny County prior to the holding· of said primary election.

Under these facts you ask to be advised whether, by reason of the failure or neglect of the said Prohibition party to nominate a candidate for said office at said primary election, such a vacancy now exists in said office of Representative in the General Assembly as may be filled under Section 12 of said "Uniform Primaries Act, which provides 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."

(the provisions of law now existing for filling vacancies being found in Section 11 of the Act of 10th June, 1893, P. L. 419, providing for the filling of vacancies in case of the death or withdrawal of a regularly nominated candidate); and also whether your Department is authorized to accept for filing the said nomination paper of the said Jacob D. Utech, and to certify his name to the County Commissioners of Allegheny County, to the end that the same may be printed upon the official ballots for the fall election.

Your inquiry involves a consideration of existing legislative provisions relative to the nomination of candidates to the office of Rep-representative in the General Assembly. Prior to the passage of the said Uniform Primaries Act nominations to office were made by nomination certificates and nomination papers. Any combination of electors with sufficient coherence and organization to have acted together for a common purpose, and sufficient strength to have polled two per centum of the highest vote at the next preceding election, constituted a political party, and had the right to put nominations on the ballot by nomination certificates, (Independence Party Nominations, 208 Pa., 108), and a combination which is less than a party could secure a place for its nominees on the official ballot only by filing nomination papers. (Citizens Party Nominations, 21 Pa., C.C., 417).

The Uniform Primaries Act, however, is an enactment to systematize, regulate and put under control of positive law party nominations for public office. Its first requirement is uniformity throughout the state. Commonwealth, ex rel. vs. Blankenburg, 218 Pa., 339.

With reference to the nomination of candidates for the office of Representative, the material provisions of the Act are as follows: In Section 2 it is provided that candidates for all offices to be filled at the general election, with the exception of those nominated by National or State conventions, shall be nominated at the Spring Primaries, and that no candidates for the public offices specified in said Act shall be nominated in any other manner than as set forth therein, "Provided that nothing herein contained shall prevent the nomination of candidates for borough or township offices, or other offices not herein specifically enumerated in the manner provided by existing laws; or any association of electors not constituting a party from nominating candidates by nomination papers as is provided by existing laws." The office of Representative is specifically enumerated in Section 5 of said Act, under the appellation of "Member of (he State House of Representatives," and, as already -stated, the Prohibition party is not within the proviso above quoted. The office in question is a state office and is so designated in Section 3 of the Act of 9th July, 1897, (P. L. 223).

By the 3rd section of the Uniform Primaries Act it is made the duty of the Secretary of the Commonwealth to send to the County Commissioners in each county a written notice on or before the 9th Saturday preceding the Spring primaries, setting forth, inter alia, the number of officers of the Commonwealth, not nominated by State conventions, to be elected at the next succeeding general election, and by the same section it is made the duty of the said Commissioners to publish the names of all offices for which nominations are to be made within the county at the ensuing primaries at least once each week for three successive weeks in two newspapers.

By section 5 of said Uniform Primaries Act it is provided in substance, inter alia, that the names of candidates for the office of Representative shall be printed upon the official ballot of a designated party upon the filing of a petition with the Secretary of the Commonwealth at least four weeks prior to the primary, signed by fifty qualified electors of the district.

Section 6 provides that the Secretary of the Commonwealth, immediately after the filing of said petition, shall forward the name of such candidate to the County Commissioners of the proper county, who are charged with the preparation and distribution of official ballots for the primary election, and with the computation and canvassing of the returns thereof.

By section 11 of said Act the County Commissioners are required to make a proper certification of the votes cast for state offices to the Secretary of the Commonwealth.

Section 12 provides that the candidates who receive a plurality of votes of any party at a primary shall be the candidates of the party, and that their names shall be printed by the proper officers upon the official ballot to be used at the ensuing election; and by section 1 of the Act of 29th April, 1903, (P. L. 338), it is provided that the Secretary of the Commonwealth at least fourteen days previous to the day of any election of state officers shall transmit to the County Commissioners and the Sheriff in each county in which such election is to be held, duplicate official lists, stating the names, etc., of all candidates duly nominated for such election.

The above is an outline of the method by which the Prohibition party in the district in question was required to nominate its candidate for the said office, but it neglected and failed to make such nomination, and no effort whatever seems to have been made to comply with the Uniform Primaries Act.

You state in your communication that the persons interested in the filing of the nomination papers referred to evidently rely for their right so to do upon the provisions contained in the last paragraph of the 12th section of the Uniform Primaries Act, reading as follows:

"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."

Clearly no vacancy has happened after the date of the primary, but it is contended that there is a vacancy "existing after the date of the primary." The logical result of holding that under the above facts a vacancy exists within the meaning of Section 12 in the Prohibition party for the office of Representative would be the abrogation of the entire Uniform Primaries Act, for if no nominations were made under the Act by any political party, the same kind of vacancies would exist in each political party, for all the offices to which the nominations should have been made at a specified primary.

The words "vacancies existing after the date of the primary" may be given a reasonable construction and a definite meaning which will be in harmony with the purpose of the Act. For instance, it appeared in the case of Commonwealth ex rel. vs. Blankenburg, supra, that in the year 1907 the Spring primary was held on June 1st, and that the ninth Saturday preceding was March 30th. Prior to the latter date the Secretary of the Commonwealth notified the County Commissioners of Philadelphia, inter alia, that two judges of the Court of Common Pleas No. 1, were to be nominated at the ensuing primary. Subsequently an additional vacancy occurred in said Court by reason of the resignation of one of the judges thereof. Upon this state of facts the Supreme Court held that the third vacancy occurred too late for the nomination to be made under the provisions of the Uniform Primaries Act, and that this vacancy necessarily fell under the alternative provisions of Section 12. This is an illustration of a vacancy that existed, but did not happen, after the date of the primary.

Under the former system of making nominations, it was held ( Commonwealth vs. Reeder, 18, Pa., C. C, 315), that the Secretary of the Commonwealth must receive and file every certificate of nomination and every nomination paper which is regular on its face, leaving the persons alleging any defect in the same to their remedy by filing objections in the proper Court.

1 am of the opinion, however, that there is now no authority in law authorizing you to receive the nomination paper of the said Jacob D. Utech, or to certify his name to the County Commissioners and Sheriff as a candidate duly nominated for the ensuing election.

Yours respectfully,

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