Pennsylvania Advisory Opinions October 07, 1915: AGO 115

Advisory Opinion Text

ERIE JUDICIAL CONTEST.

There being but one person to be elected Judge of Erie County and lie received more than one-half the total votes east for such office, but not more than one-half the total number of ballots cast within the political district, i. e. Erie County, the candidate cannot be certified as the sole nominee for Judge of the County.

Honorable Frederic A. Godcharles, Deputy Secretary of Commonwealth, Harrisburg, Pa.

Sir: Your favor of the 6th inst., asking to be advised how to certify the result of the primary election for the office of Judge of the Court of Common Pleas of the Sixth Judicial District composed of the County of Erie, is at hand.

I understand the facts to be as follows:

At the primary election recently held, nominations were made for one office of Judge of said district, for county offices in the County of Erie, and for the offices of Mayor-and other offices in the third class cities of Erie and Corry, in said County of Erie. The nominations for Judge and for Mayor and other city offices were upon a non-partisan ballot. The nominations for the county offices were on a partisan ballot. Each voter participating in the election in the city of Erie was given two separate non-partisan ballots, one containing the names of the nonpartisan candidates for nomination to the office of Judge for the Superior Court, and the names of nonpartisan candidates for the office Of Judge of the Court of Common Pleas of Erie County; the other ballot containing the names of nonpartisan candidates for city offices. The voter, if entitled, was also given a party ballot.

In the city of Erie the total number of ballots cast for all candidates for the office of Mayor was 9,826, which was the highest number of non-partisan ballots cast for any city office. The total number of votes cast for the Clerk of the Court was 12,323, and for the candidates for County Commissioner 25,717, indicating, according to the rule adopted in the recent opinion given you, (each voter having had the right to vote for two candidates), 12,858 ballots cast for the office of County Commissioner.

The total number of votes cast for candidates to the office of Judge of the Court of Common Pleas of Erie County was 14,644, of which Uriah P. Rossiter received 7,759 and Joseph M. Force 6,881, four additional votes being cast for other candidates.

The County Commissioners certify:

"That the total number of voters who received ballots and voted at the said Primary Election held on Tuesday, September 21, 1915, in the said County of Erie was eighteen thousand three hundred fifty-eight (18,358). This includes the ballots cast for municipal candidates for Erie and Corry, third class cities within this district, and the computation was arrived at in the following manner: If voter cast non-partisan ballot only, he counts as one. If voter cast party ballot only, he counts as one. If voter cast all ballots he was entitled to, he counts as one. It is the voters that are counted."

The Act of Assembly approved June 18, 1915, P. L. 1050 in the first part of Section 13 provides:

"That whenever, at any primary, any candidate for nomination to any of •the aforesaid offices to which but one person is to he elected at the succeeding election, shall receive a number of votes greater than one-half of the total number of votes cast for such office at such primary, and greater than one-half of the number of BALLOTS CAST in the political district, or division within which the nomination is to be made, such candidate shall be the sole nominee for such office."

Mr. Rossiter received more than fifty per cent, of "the total number of votes cast for such office" of Judge, and hence there is no question arising upon that provision of the act.

Concisely stated, your question is whether "the number of ballots cast in the political district or division within which the nomination is to be made" in this case includes the votes for the candidates for mayor in the Cities of Erie and Corry, or whether it is to be determined only by the highest number of ballots cast for any county office.

It has been suggested that this provision of the act of assembly was intended to mean the total number of ballots cast for an office, the jurisdiction of which is ordinarily limited to but includes the whole of such political district or division.

It must be noted, however, that the provision where one office is to be filled is "the number of ballots cast in the political district or division, etc.", whereas in the case where two or more candidates for judge are to be elected, the Legislature by the Act of 1915 changed the provision, and made the second requirement "a number greater than one-half of the number of ballots cast for any one candidate for any office in the political district or division within which the nomination is to be made", so that the same test cannot be applied to both cases.

In an opinion just rendered to your Department, I advised that the language of this statute, and that the words "for any one candidate for any office" which were inserted in the amendment, being plain, could not be disregarded, and that the Legislature, where one office was to be filled, prescribed a test different from that to be applied where two or more offices were to be filled. The Legislature, in the former case, did not say that the candidate should receive a number of votes greater than one-half of the number of ballots cast "for any office" in the political district or division within which the nomination is to be made, but declared that there should be a number "greater than one-half of the number of ballots cast in the political district", etc.

To construe the language "greater than one-half the number of ballots cast in the political district," etc. to mean that those ballots must be cast for a candidate to be elected in the political district, or for an office, the jurisdiction of which is ordinarily limited to but includes the whole of such political district or division, would be to read into the act of assembly something which is not there.

The certificate of the County Commissioners shows that there were 18,358 ballots cast in the county of Erie. The County of Erie is the political district or division within which the nomination for Judge is to be made. The fact that the total number of ballots is ascertained by the number of ballots cast for municipal candidates in the cities of Erie and Corry, which are within the political district, does not alter the situation. If the ballots cast for the municipal candidates are excluded from the computation then the result would not be a number greater than one-half of the number of ballots cast in the political district."

I am, therefore, of opinion there being but one person to be elected to the office of Judge of Erie County, that though Uriah P. Rossiter received 7,759 votes, more than "one-half the total number of votes cast for such office", yet not having received more than one-half of 18,358, which was the total number of "ballots cast within the political district", to wit, the County of Erie, he is not entitled to be certified as the sole nominee for the office of Judge of the Sixth Judicial District composed of the County of Erie.

Respectfully,

FRANCIS SHUNK BROWN, Attorney General.