Pennsylvania Advisory Opinions August 10, 1904: AGO 124

Advisory Opinion Text

JUSTICE OF THE PEACE-OLD FORGE BOROUGH, LACKAWANNA COUNTY.

Where in an election legally had to increase the justices of the peace from two to three and a majority vote returned in favor of the increase, and duplicate returns were made, one filed with the prothonotary, and the other sent by mail to the office of the Secretary of the Commonwealth, but not received by him; held that the commission for the third justice of the peace, properly elected, should issue.

Hon. Samuel W. Pennypacker, Governor:

Sir: Your letter of recent date, enclosing affidavits and other papers in reference to the claim of certain citizens of Old Forge, Lackawanna county, that that borough is entitled to an additional justice of the peace, increasing the number from two to three, and asking for an official opinion upon the same, has been received.

It appears that Old Forge was organized under the general borough law and consequently was originally empowered to elect two justices of the peace, but on account of its rapid growth and its large territorial extent, at the February election in 1899 the question of increasing the number of the justices of the peace from two to three was properly submitted to the qualified electors of the said borough and a majority vote was returned in favor of said increase. It also appears by an affidavit made by Matthew Bean, who, at the time, was constable of the borough, that all the requirements of law regulating such elections were complied with and immediately following the election true duplicate returns of the same were made out, and in compliance with law he filed one of the returns in the office of the prothonotary of Lackawanna county, and transmitted the other by mail to the Governor of the Commonwealth. The records of the Executive Department fail to show that the return transmitted to it was ever received, and it appears that the return to the prothonotary of Lackawanna county has been mislaid and cannot be found.

On account of the incomplete state of the records no commission has been issued to any justice elected to fill the vacancy caused by this increase and the question now submitted to me is whether such a vacancy now exists as would justify you in appointing a person to fill the office.

It was held by Attorney General McCormick in a somewhat similar case that the will of the people as expressed in a regular and legal election properly held cannot be set aside or rendered null and void by a failure on the part of the constable to file the returns in accordance with the law, and that upon proof being made that such an election was held and such an increase provided, the vacancy thus created legally existed and could be filled either by a gubernatorial appointment or by an election, although several years had elapsed since the vote on the matter had been taken. In this conclusion of law I concur and it has been followed in several cases since.

I am, therefore, of the opinion and advise you that by the legal action of the electors of the borough of Old Forge that borough is entitled to three justices of the peace, and, inasmuch as there are but two now in commission, a vacancy exists which you are authorized to fill by appointment until the first Monday of 'May, 1905.

Very respectfully yours,

FREDERIC W. FLEITZ, Deputy Attorney General.