Pennsylvania Advisory Opinions August 03, 1904: AGO 125

Advisory Opinion Text

JUSTICE OF THE PEACE.

Reviewing the proceedings under which the borough of Mechanicsburg was divided into wards, and holding that said borough is entitled to two justices of Che peace, and that there is a vacancy in said office which the Governor is authorized to fill.

Hon. Samuel W. Pennypacker. Governor:

Sir: I am in receipt of and have carefully examined the papers in the application of J. C. Eeeser for a commission as justice of the peace in the borough of Mechanicsburg, to fill the vacancy now existing in the said office, caused by the decision of this Department that the borough in question is entitled only to borough justices, and asking for an official construction of the law in this matter.

It appears that the borough of Mechanicsburg was incorporated under the special act of April 12,. 1828, (P. L. 308), which act does not fix the number of justices. The various supplements to the charter, down to June 21, 1839, (P. L. 376), are also silent as to the number of justices to which the borough is entitled. Section one of the last named act, however, provided that in each borough not divided into wards two justices of the peace shall be elected. Mechanicsburg was not then divided into wards and it never subsequently proceeded to increase the number of justices in accordance with the provisions of the said law. In pursuance of a resolution of council, on application to the court, an order was granted on August 21, 1857, whereby the general borough act of April 3, 1851, was adopted as the charter of the borough of Mechanicsburg, and the provisions of the original charter in conflict therewith were annulled. By the act of April 13, 1868, (P. L. 989), the borough was divided into two wards, and it was therein stipulated that one of the two justices to which Mechanicsburg was then entitled should be elected in each ward. On November 19, 1879,.a petition was filed in the Court of Quarter Sessions of Cumberland, asking for a division of the South ward on account of its size and extent. These proceedings were begun in pursuance of the General act of Assembly of May 14, 1874, (P. L. 157);, commonly known as the general borough law. The South ward was divided into the First and Second wards in accordance with the prayer of the petitioners. By a similar proceeding begun at the same time the North ward was also divided into two wards: the Third and Fourth. Subsequently, by a similar proceeding, under the same act, the First ward was divided into two wards, thereby creating what is known as the Fifth ward. By reason of this action the borough was brought for all purposes under the general borough law, and from that time forth the borough has been entitled to only two justices of the peace, who should have been elected for the whole borough. However, through a misconception of the law as to justices, the wards proceeded to elect ward justices up until the present time. There is at present only one justice in commission in said borough who was regularly elected as a borough justice. The other regularly elected borough justice died on October 17, 1903, while in commission, thereby leaving a borough justice vacancy to be filled by appointment, and for this appointment the applicant, J. C. Reeser, is a candidate.

Under all the circumstances of the case I am of the opinion and advise you that a vacancy exists in the office of justice of the peace in the borough of Mechanicsburg, which you are authorized by law to fill.

Very respectfully yours,

FREDERIC W. FLEITZ, Deputy Attorney General.