Pennsylvania Advisory Opinions December 07, 1911: AGO 142

Advisory Opinion Text

. TERM OF COUNTY TREASURER.

Where one elected county treasurer of Butler county dies before qualifying in office, the county treasurer in office holds over until his successor is duly qualified.

Office of the Attorney General, W. H. Gaither, Esq., Private Secretary to the Governor.

Sir: The Attorney General has referred to me for attention your communication of December 6th, in which you state the following circumstances, with regard to the county treasurer ship of Butler county, viz:

"Cunningham Trimble was elected county treasurer three years ago, his term to expire the first Monday in January, 1912. At the last election in November Jacob W. Glessner was elected to this office to succeed Trimble. After the election, however, Glessner's death occurred and the contention is that the law provides that Trimble's administration does not expire until his successor shall duly qualify."

This contention, to the effect that Trimble, the incumbent elected as county treasurer at the election in 1908, holds over until his successor shall be duly qualified, is correct, by reason of the express provisions of Section 2 of Article XIV of the Constitution, as amended by the amendments thereto of 1909.

Section 2 of Article XIV provides:

"County officers shall be elected at the general elections and shall hold their offices for the term of three years beginning on the first Monday of January next after their election and until their successors shall be duly qualified," etc.

Section 1 of the same article provides that:

"County officers shall consist of sheriffs, coroners, prothonotaries, registers of wills, recorders of deeds, commissioners, treasurers," etc.

Section 10 of the amendments of 1909 amending the said Section 2 of Article XIV of the original Constitution, makes no change with regard to the holding over. The amendment reads as follows:

"County officers shall be elected at the municipal elections and shall hold their offices for the term of four years, beginning on the first Monday of January next after their election, and until their successors shall be duly qualified," etc.

Construing the above constitutional provision, it was held in the cases of the Commonwealth v. Hanley, 9 Pa. 513, and Commonwealth v. Wise, 216 Pa. 152, that the elected incumbent to a county office has the constitutional right to hold over until his successor is duly qualified.

"A county officer is not elected or commissioned for only three years (or for four years under the new amendment) but for such additional period as may intervene between the end of the three years and the time when his successor is duly qualified. The additional period is by an express provision of the Constitution as much a part of his official term as the definite number of years fixed in his commission, when he holds over. Therefore his term is extended in exact compliance with the Constitution and the period during which he holds over is a part of his constitutional tenure. It necessarily follows that no .vacancy can occur in a county office so long as the elected incumbent continues to perform the duties of the office. This rule prevails when the officer elected or appointed has for any cause whatever failed to qualify, and is recognized not only in our own but in other jurisdictions of this country."

The above quoted language is that of Mr. Justice Mestrezat, delivering the opinion of the Supreme Court in the case of Commonwealth v. Sheatz, 228 Pa. 301, in which the Supreme Court distinguishes between State officers and county officers with regard to the tenure of their office. The term of the State Treasurer was fixed by the Constitution at two years, and the Constitution contained no provision that at the end of this period of time, if the successor did not qualify, the incumbent previously elected should hold over. In the case of county officers, by Article XIV of the Constitution, there is such a provision as above stated.

It follows, therefore, that Mr. Trimble is entitled to hold his office as county treasurer until his successor is elected at the general municipal election in the next odd numbered year, 1913, and has duly qualified.

Very truly yours,

WM. N. TKINKLE, Assistant Deputy Attorney General.