Pennsylvania Advisory Opinions July 13, 1920: AGO 139

Advisory Opinion Text

The Act of July 9, 1919, P. L. 832, repeals the Act of July 24, 1913, P. L. 1001, relating to the withdrawal of nominees on the Non-Partisan ticket, so that nominees may now withdraw their names before the election.

Office of the Attorney General, Honorable Cyrus E. Woods, Secretary of the Commonwealth, Harris-burg, Pa.

Sir: I have your-communication of the 22d ult, requesting an opinion as to whether a candidate nominated at the Uniform Primary

Election may withdraw his name from nomination, and if so, when the withdrawal papers shall be filed.

I understand that your inquiry results from the apparent conflict between Section 3 of the Act of July 9, A. D. 1919, P. L. 832, which amended Section 7 of the Act of June 10, A. D. 1893, P. L. 419, and Section 17 of the Act of July 24, A. D. 1913, P. L. 1001.

Section 3 of the Act of 19.19 referred to, provides as follows:

"Any person whose name has been presented as a candidate for the office of Presidential Elector, Member of the House of Representatives of the United States, or for any State office, including those of judges, senators and representatives, may cause his name to be withdrawn from nomination by request in writing, signed by him and acknowledged before an officer qualified to take acknowledgements of deeds, and filed in the office of the Secretary of the Commonwealth at least fifty days previous to the day of the election, and all candidates for other offices, with the county commissioners of the respective counties at least twenty-five days previous to the day of the election; and no name so withdrawn shall be printed upon the ballots."

Section 17 of the Act of 1913 referred to, which is entitled "An Act to regulate nominations and elections for all elective offices of cities of the second class, and all offices of Judge of a Court of Record; providing for non-partisan nominations and elections for said offices," etc., provides as follows:

"No candidate for any office within the provisions of this Act, nominated at or after a primary, may withdraw his name as candidate for election."

The question arises, therefore, whether the above quoted portion of Section 17 of the Non-partisan Act of 1913, has been repealed by the Act of July 9, A. D. 1919, P. L. 832. The latter Act amends Sections 5, 6 and 7 of the Act of 1893, P. L. 419. It is a general Act or an amendment to a general Act, and contains no repealing clause.

Does it repeal by implication the provision in the Non-partisan Act which prohibits withdrawals from nomination by candidates nominated thereunder? While repeals by implication are not favored in the law, and this principle applies with particular force when applied to an implied repeal of a special law by a general law, if there be in the later Act something showing that the attention of the Legislature has been turned to the earlier special Act, and that it intended to embrace the special cases within the general Act, the general Act may be construed to constitute a repeal of the special Act.

The Courts have held that the intent to repeal may be inferred from the fact that the provisions of the two Acts are glaringly repugnant to; and radically irreconcilable with, each other, so that it is impossible for both to stand.

An examination of the above quoted inconsistent Sections of the Acts of 1913 and 1919, makes it reasonably clear that the Legislature of 1919 had in mind the prohibition against withdrawal from nomination by candidates nominated under the Non-partisan Act of 1913.

The Act of 1919 specifically mentions the office of Judge as one from which a candidate may withdraw after nomination. It is to be presumed that the Legislature knew the provisions of prior legislation upon the subject. Manifestly the purpose of the Legislature in passing the later Act, was to establish again that uniformity in the law which had existed prior to the passage of the Non-partisan Act, by prescribing that all persons nominated for offices may withdraw in the manner therein prescribed.

You are, therefore, advised that a person nominated to the offices named in the third Section of the Act of July 9, 1919, P. L. 832, may withdraw his name from nomination in the manner therein prescribed, and that in all cases in which the nominating petition has been filed in the office of the Secretary of the Commonwealth, the withdrawal must be filed at least fifty days previous to the day of the election. In all other cases the withdrawal must -be filed with the County Commissioners of the proper county, at least twenty-live days previous to the day of the election.

Very truly yours,

ROBERT S. GAWTHROP, First Deputy Attorney General.