Pennsylvania Advisory Opinions October 13, 1926: AGO 126

Advisory Opinion Text

Mines and Mining - Mine Inspectors - Qualifications - Age Limit - Appointment - Act. of 1911, P. L. 156 as amended by Act of 1915, P. L. 106.

A person who at the time of his examination for mine inspector was under the age of fifty years may be appointed after reaching that age if he possesses the necessary qualifications and has successfully passed the examination. Failure to certify his name with those of other candidates does not affect his rights.

Department of Justice, Sir: This Department is in receipt of your recent letter in which you inquire whether an applicant for the office of mine inspector in the bituminous region, who fully qualified for examination before the Examining Board in July, 1925, and duly passed his examinations at that time, but was not certified as having so passed until May 6, 1926, without any fault for the delay on his part, is now eligible for appointment to the said office, even though the said applicant reached the age of fifty years on January 4, 1926?

This question calls for construction of the Act of June 7, 1911, P. L. 756, as amended June 1, 1915, P. L. 706, so far as it applies to the examination and appointment of mine inspectors. Section D of Article XIX of this Act provides for certain qualifications of candidates for the office of mine inspector to be certified to the Examining Board:

"The qualifications of candidates for the office of inspector shall be certified to the Examining Board, and shall be as follows:

"The candidates shall be citizens of Pennsylvania, of temperate habits, of good repute as men of personal integrity, in good physical condition, and shall be between the ages of thirty and fifty years."

Section 5, Article XIX, provides as follows:

"The Governor shall, from the names certified to him by the Examining Board, commission one person to be inspector for each district, in pursuance of this Act, whose commission shall be for a full term of four years from the fifteenth day of May following the regular examinations."

Section 6, Article XIX, provides for filling vacancies in the following certain language:

"When a vacancy occurs in said office of inspector, the Governor shall commission for the unexpired term, from the names on file in the Department of Mines, a person who has received an average of at least ninety per centum."

The language of the Act in the provisions above referred to, clearly intends that certain qualifications must exist and be certified to the Examining Board before examination, among them being, "the applicant shall be between the ages of thirty and fifty years". The applicant in question was between the ages or thirty and fifty years at the time of the examination dates, June 30 and July 1 and 2, 1925, fulfilled all the qualifications, and was certified to the Examining Board for examination.

The name of this applicant, "through no fault of his own", according to the facts submitted, was not certified with the names of the other successful candidates in the said examination until May 6, 1926, but is now on the eligible list, after belated but. proper certification. This certification was a ministerial duty and, if not performed at the time indicated by law, must be performed as soon thereafter as the omission is discovered. Commonwealth vs. Griest, 196 Pa. 396.

The provision requiring candidates to be under the age of fifty years applies to the qualifications for examination and not for appointment. The Legislature did not require that a man could not be appointed as an inspector if over fifty years of age, but that the age limit applies to qualifying to appear before the Examining Board. The mere fact that an applicant attains the age of fifty years while he is eligible for appointment, does not disqualify him for such appointment. He continues eligible just the same, no more and no less, as though he were still less than fifty years old.

The ruling in this case in no wise conflicts with the Department of Justice opinion written June 9, 1925, by Deputy Attorney General Frank I. Gollmar, where the question was; whether the Mine Examining Board is justified in refusing to grant a certificate of qualification to a candidate for examination for the office of mine inspector, who has reached his fiftieth birthday, even though the possesses the other qualifications required by the Act. In the instant case the applicant did not become fifty years of age until after he had passed the examination.

I am, therefore, of the opinion that the applicant, who is the subject of your inquiry, is eligible at this time for the appointment to the office of mine inspector in the bituminous region.

Yours very truly,

GEORGE W. WOODRUFF, Attorney General