Pennsylvania Advisory Opinions August 03, 1903: AGO 141

Advisory Opinion Text

JUSTICE OF THE PEACE.

Under the general borough law of 1851, under which the borough of Tamaqua was operating. B. and L. were elected two justices of the peace and commissioned for Ave years. In 1903, S. was also elected a justice of the peace. B. and L. protested that no vacancy existed as the borough was only entitled to two justices of the peace, and that no commission should issue to S. Held, that a. commission should not issue to S.

In re claim of John H. Stidfole for a commission as a justice of the peace.

To the Hon. Samuel W. Pennypacker, Governor of the Commonwealth of Pennsylvania:

Sir: This appears to be an old controversy, waged for some years by the same parties.

In April, 1900, Samuel Beard and John H. Lutz, claiming to have been elected justices of the peace for the borough of Tamaqua, applied to the Secretary of the Commonwealth for commissions, and a protest was filed by John H. Stidfole.

The matter was referred to the Attorney General, who, relying on the case of Commonwealth ex rel. v. Morgan, 178 Pa. S., 204, and on the election returns, overruled the protest and directed commissions to be issued to the applicants.

At the present time Mr. Stidfole claims a commission, and a protest is filed by his old antagonist. Mr. Stidfole's election took place on February 17> 1903. The Secretary of the Commonwealth, whose records show that there was no vacancy existing at the time of Mr. Stidfole's election-the general borough law of the Commonwealth, under which the borough of Tamaqua is now operating, specifically limiting the number of justices of the peace in each borough to two- has declined to issue the commission, and an appeal has been made to you.

Mr. Stidfole contends that there is a vacancy, because, as he asserts, Mr. Lutz was improperly elected and commissioned. No steps have been taken to test Mr. Lutz's right or title to his office by quo warramto; and no mandamus has been applied for by Mr. Stidfole.

To understand the origin of the controversy the following history is given:

The borough of Tamaqua, Schuylkill county, was incorporated by a special act, approved the 9th day of April, 1833, and, under that act and subsequent acts prior to 1874, was divided into three wards, each of which elected a justice of the peace until 1899. On the 30th day of January, 1899, a petition was filed in the Court of Quarter Sessions of Schuylkill county, asking for a division of the East ward of Tamaqua borough into two wards on account of its large size and population. These proceedings were begun, and in pursuance of the provisions of the general act of Assembly, approved May 14, 1874, (P. L. 159), known as the general borough law, the ward was divided in accordance with the prayer of the petitioners. Under numerous decisions of the courts-(Fox v. Pattison, 2 District Reports, 128; Com. ex rel. Fenner v. Pattison, 3 District Reports, 599; Com. v. Taylor, 159 P. S. 451; Com. ex rel. v. Morgan, Appellant, 178, P. S. 198,)-this action brought the entire borough under the general borough law, and from that time the borough was entitled to only two justices of the peace, who should be elected for the whole borough, ward justices being abolished. According to the regular practice in such cases, however, the justices holding commissions were not disturbed, but were allowed to remain in office until their commissions should expire.

The following were the justices for the various wards:

John H. Lutz, elected ward justice for the South ward in February 1897, and commissioned for five years;

William Priser, elected for the East ward in February, 1898, aud commissioned for five years;

John H. Stidfole, elected in February, 1898, for the North ward, and commissioned for five years.

It appears that at the spring election in 1900 all of these justices, together with several other citizens, ran for the office of borough justice, and that a proper proclamation or notice of such election was given by the high constable of the borough. In that election Samuel Beard received 283 votes; John H. Lutz, 180 votes; William Priser, 179 votes; John H. Stidfole, 15 votes; J. K. P. Sheifley, 5 votes; George Crist, 2 votes, and A. L. Lutz, 2 votes. Samuel Beard and John H. Lutz, having received the highest number of votes, were duly commissioned borough justices for the five years next ensuing, under the direction of the Attorney General, and their commissions will expire on the first Monday of May, 1905. No election has been held since until February of this year, when Stidfole's commission expired as ward justice. It seems that Priser, whose commission expired at the same time, was not a candidate for the office of borough justice. Stidfole, who had been acting as justice under his old ward commission, became a candidate for borough justice, and haying received the highest number of votes cast for that office, has presented his acceptance to the prothonotary and was placed upon the return list made by that office to the Secretary of the Commonwealth's Department, as indicated, to succeed himself. It is doubtful whether he could do this, as the office of ward justice expired with his commission. But he now makes a request to be appointed as borough justice, claiming that Lutz had been- improperly commissioned in 1900, because he (Lutz) was then holding a commission as ward justice. It is to be observed that Stidfole himself was a candidate in that election, as were the other remaining ward justices. Such seem to be the facts.

The legal position is as follows:

The general borough law of the Commonwealth, under which the borough of Tamaqua is now operating, specifically limits the number of justices of the peace in each borough to two. Two men, claiming to be regularly elected and actually commissioned (Beard and Lutz) were serving in that capacity February, 1903, at the time of Mr. Stidfole's election, under commissions which will not expire until 1905. They protest that no vacancy in the office of borough justice existed at the time of Stidfole's election, and further claim that an election for the office of justice of the peace, under these circumstances, was invalid, and that no commission should be issued to Stidfole. The Secretary of the Commonwealth, whose records disclose no vacancy, has declined to prepare Mr. Stidfole's commission. If it be desired to raise the legality of Lutz's tenure in holding his present commission as justice of l"he peace, such action can be taken under the law as it stands, on a quo warranto, in the court of Schuylkill county. If Lutz should be ousted by a decree of that court and a vacancy is thereby created, that vacancy can be filled by your appointment as Governor until the first Monday of May next, when the person who shall be successful in receiving the largest number of votes cast at the election next February for that office will go into commission.

To deviate from what has been the settled practice in the State Department and issue a commission to the claimant under these circumstances, will lead to confusion in that Department and throughout the Commonwealth. Aldermen and justices of the peace alike are very remiss each year in complying with the requirements of the law in reference to qualifying, and many trivial and annoying questions have arisen annually on this account. To hold that a commission must issue to every person who makes an application and claims under an alleged election, without regard to the law as to the number of incumbents, would be productive of grave results.

The practice of this Department has been to advise against the issue of a commission to a claimant in a doubtful case. In Fox's case, 1 District Reports, 513, Attorney General Hensel, in advising that no commission should issue in a similar case, said:

"It also appears that, should the commission issue, the Commonwealth will be asked to test the commissioned officer's title by a quo warranto, to be issued in the name of the Commonwealth, and, pending the final determination of that inquiry, the official acts of the respondent will be tainted with doubt, whereas a denial of the commission will result in an application for a mandamus, wherein the Commonwealth's executive officers can consistently maintain the attitude they assume in refusing to issue the commission."

The case was tried subsequently upon petition and answer in proceedings in mandamus, and Judge Simonton held that the petitioner, Fox, was not entitled to a commission. (Com. ex rel. Fox v. Patti-son, 2 District Reports, 128). In a later case-that of Com. ex rel Fenner v. Pattison, 3 District Reports, 599,-where a similar form of proceeding and practice was followed, the petitioner was held to be entitled to his commission, after a judicial investigation of the facts.

Following these cases, this Department, in an opinion given by the Deputy Attorney General, In re commission of a justice of the peace, (8th District Reports, 295), ruled that, as the Executive Department was not a judicial tribunal, disputes of this kind should be settled in the proper forum-the 'courts of the Commonwealth.

It is manifest that in the present case the facts and law are in dispute, and should be passed on by the courts, either by testing Lutz's title by quo warranto; or by a petition by Stidfole for a mandamus. To grant a commission to Stidfole would not settle the controversy, for quo warranto proceedings would follow. Litigation is inevitable. It matters not who moves in the first instance.

I cannot advise a step which would disturb settled practice, overrule precedents, place the executive officers of the government in an inconsistent position, and prove inconclusive in the end. I advise you against the issue of the commission.

I return the papers for the files of the office of the Secretary of the Commonwealth.

Very respectfully,

HAMPTON L. CARSON, Attorney General.