Pennsylvania Advisory Opinions July 14, 1909: AGO 16

Advisory Opinion Text

State of South Carolina Office of the Attorney General

The method to be followed in proposing amendments to the Constitution and submitting the same to the qualified electors of the State is prescribed in Art. XVIII: A proposal of the amendment in either house, an agreement to the same by both houses, a publication thereof by the Secretary of the Commonwealth, a second agreement by the two houses, a second publication by the Secretary, a vote of the people, which, if a majority vote, favorably, causes the amendment to become a part of the Constitution.

When the amendments have been agreed to a second time, "publication for three months before the general election" must be made.

A publication once a week in at least two newspapers in every county in which such newspapers shall be published for a period of three months before the general election in question is a compliance with the requirements of Art. XVIII.

The Act of 1909 relating to constitutional amendments directs that amendments shall be printed upon the ballots in the form and manner provided by the election laws.

Under the Act of 1903 the Secretary transmits to the county commissioners and the sheriff in each county duplicate copies of the full text of the proposed amendments.

The question relative to the adoption or rejection of the amendments shall be printed upon the ballot in brief form followed by the words "yes" or "no," and the voter may indicate his answer by making a cross (X) in the space opposite the answer he desires to give.

When ten amendments are submitted they must be in the form of ten separate questions, that the voter may vote on each separately.

It is not necessary to include in the questions submitted quotations of the sections which it is proposed to amend. Form of printing ballot given.

The schedule (affecting the length of the terms of officers) should be printed on the ballot in the form of a question substantially similar to the proposed amendments. Form given.

Hon. Robert McAfee, Secretary of the Commonwealth, Harrisburg.

Sir: Your communication of June 23rd, asking to be advised by this Department relative to making up the form of the ballot for the ensuing November election, in view of the fact that certain proposed amendments to the Constitution are to be submitted to the qualified electors of the State at that time, has been received.

I understand the facts upon which your inquiry is based to be as follows:

At the session of the Legislature of 1907, ten amendments, proposed by joint resolution of the Senate and House of Representatives, to the present Constitution of this Commonwealth were agreed to by a majority of the members elected to each house and were entered on their journals with the "yeas" and "nays" taken thereon. Amendments were proposed to Sections 8 and 21 of Article IV, Sections 11 and 12 of Article V, Sections 2, 3 and 14 of Article VIII, and Sections 1, 2 and 7 of Article XIV, the general purpose of the amendments being to abolish the February elections and to provide for a general election to be held biennially on the Tuesday following the first Monday of November in each even-numbered year, at which general election State officers are to be elected, and for a municipal election to be held biennially on the Tuesday following the first Monday of November in each odd-numbered year, at which municipal election comity and local officers shall be elected. Accompanying said proposed amendments is a schedule declaring that in order that no inconvenience may arise from the proposed changes in the Constitution, and in order to carry the same into complete operation, the terms of office of certain officers shall be lengthened, directing that the municipal election for 1910 shall lie held in February as heretofore, and designating when the terms of certain officers shall begin, etc.

The Secretary of the Commonwealth duly caused said proposed constitutional amendments to be published three months before the general election in the year 190S. In the General Assembly of 1909, being the next General Assembly chosen after the proposal of said constitutional amendments, said proposed amendments were agreed to by a majority of the members elected to each house, and by an act of the General Assembly approved April 22, 1909, it was enacted that for the purpose of ascertaining the sense of the people of this Commonwealth in regard to the adoption or rejection of said amendments they should be submitted to a vote of the people at the general election to be held on the 2nd day of November, 1909, (said date being more than three months after said amendments had been agreed to by the two houses of the session of 1909) for the purpose of deciding upon the approval and ratification or rejection of said amendments, which said election it is provided shall be opened, held and closed upon said election day and within the hours at and within which the said general election is directed to be opened, held and closed, and in accordance with the provisions of the election laws-of Pennsylvania and amendments thereto. It is further provided in said act of Assembly that "such amendments shall be printed upon the ballots in the form and manner provided by the election laws of Pennsylvania, and shall conform in all respects to the requirements of such statutes."

The amendments were proposed in the following form:

Amendment One to Article four, Section- eight.

Amend section eight of article four of the Constitution of Pennsylvania, which reads as follows:

'He shall nominate and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint a Secretary of the Commonwealth,' &c

So as to read as follows:

He shall nominate and by and with the advice and consent of two-thirds of all the members of the Senate, appoint, &c."

In other words, instead of indicating the desired change by proposing to strike out certain words and to insert others, or either, or both, the section of the Constitution which it is proposed to amend is quoted in full as the same now reads, and the suggested change is indicated by proposing that the section under consideration be amended so as to read as indicated.

Under these facts you now ask to be advised:

First. Whether in preparing the form of the ballot for the ensuing November election it will be necessary to print thereon the sections of the Constitution cited for amendment, together with the proposed amendments thereto, or only the sections as they would read when, or if, amended?

Second. Whether the ten proposed amendments shall be printed as separate questions, or whether they may all be included in one question ? And

Third. Whether the schedule accompanying the proposed amendments shall be placed on the ballot in the form of a question?

You have also verbally requested to be advised as to the proper method of advertising the proposed amendments prior to the ensuing election.

The method to be followed in proposing amendments to the Constitution and submitting the same to the qualified electors of the State is prescribed in Article XVIII of that instrument. The several steps in the proceedings to create an amendment are the following:

A proposal of the amendment in either house, an agreement to the same by both houses, a publication thereof by the Secretary of the Commonwealth, a second agreement by the two houses, a second publication by the Secretary, a vote of the people, which, if a majority vote favorably, causes the amendment to become a part of the Constitution.

The amendments under consideration have now passed through these several stages up' to and including a second agreement by the two houses and the designation by the two houses of the manner and time in and at which the same shall be submitted to the qualified electors of the State.

Your next duty relates to the second publication by the Secretary of the Commonwealth. It is provided by said Article XVIII of the Constitution that if the proposed amendments shall be agreed to a second time by the two houses

"The Secretary of the Commonwealth shall cause the same again to be published in the manner aforesaid,"

And the manner aforesaid is:

"Shall cause the same to be published three months before the next general election in at least two newspapers in every county in which such newspapers shall be published."

It is held in Commonwealth vs. Griest, 196 Pa., 396, that this provision means "publication for three months before the general election" in question. This disposes of the question of the time of the publication.

With reference to the manner of the publication the only provision made is that the publication shall be in at least two newspapers in every county in which such newspapers shall be published. No provision is made as to whether the papers shall be daily, semi-weekly or weekly papers. I understand the uniform practice of your Department has been to publish the proposed amendment's at least once a week in at last two newspapers in every county for a period of three mouths before the election in question.

I am of the opinion that a publication once a week in at least two newspapers in every county in which such newspapers shall be published for a period of three mouths before the general election in question is a compliance with the requirements of Article XVIII of the Constitution.

Replying to your first, second and third inquiries above stated, it is to be observed that the said Act of April 22, 1909, prescribing the time and manner of submitting the proposed amendments to the people for their approval or rejection, directs that the amendments shall be printed upon the ballots in the form and manner provided by the election laws. Turning then to the election laws of the Commonwealth we find the following provisions relative to the submission of proposed constitutional amendments to the electors of the Commonwealth:

By Section 1 of the Amendatory Act of April 29, 1903 (P. L. 338). it is provided as follows:

"The Secretary of the Commonwealth shall, fourteen days at least previous to the day of any election of United States or State officers, or for the adoption of amendments to the Constitution of this Commonwealth, transmit to the county commissioners and the sheriff in each county, in which such election is to be held, duplicate official lists, stating the names and residences of, and parties or policies represented by, all candidates whose" nomination certificates or papers have been filed with him as herein provided for such election, and have, not been found and declared to be valid as provided in Section Six, and to be voted for at each voting place in each county, respectively, substantially in the form of, the ballots to be used therein; duplicate copie s of the text of all proposed constitutional amendments to be voted upon at such election. * * *"

Under this provision it will be your duty to transmit to the county commissioners and the sheriff in each county duplicate copies of the full tex t of the proposed co nstit utional amendments.

By Section 2 of said Amendatory Act of 1903 it is provided, inter alia, that:

"Whenever the approval of a constitutional amendment, or other question, is submitted to the vote of the people, such question shall be printed upon the ballot in brief form, and followed by the words 'yes' and 'no,' and if such question be submitted at an election of public officers, it shall be printed after the list of candidates.

The ballots shall be so printed as to give to each voter a clear opportunity to designate his choice of candidates by a cross-mark (X), in a square of sufficient size, at the right of the name of each candidate, and inside the line enclosing the column, and, in like manner, answers to questions submitted, by similar marks, in squares-at the right of the word s 'yes' and 'no!' And on the ballot may be printed instructions how to mark, and such words as will aid the voter to do this, as 'mark one,' 'mark two,' and the like."

And by Section 3 of said Amendatory Act it is provided; inter alia, as follows:

"And in case of a question submitted to the vote of the people, he (the voter) may mark in the appropriate margin or space a cross (X), opposite the answer which he desires to give."

The foregoing are the provisions of the election laws of this State relative to submitting the proposed constitutional amendments to the qualified electors for their approval or rejection. The questions relative to the adoption or rejection of the proposed constitutional amendments "shall be printed upon the ballot in brief form followed by the words 'yes' and 'no' " and the voter may indicate his answer to the question by making a cross (X) in the space opposite the answer he desires to give.

It is provided by Article XVIII of the Constitution that "when two or more amendments shall be submitted they shall be voted upon separately." Ten amendments are about to be submitted and they must therefore be submitted in the form of ten separa te q uestio ns, to the end that the voter may have an opportunity of voting upon each amendment separately.

I am of the opinion that it is not necessary to include in the questions submitted to the voters of the Commonwealth quotations of the sections of the Constitution which it is now proposed to amend, the material issue submitted to the people being whether certain sections of the Constitution which they have heretofore adopted and approved, and with which they are presumed to be familiar, shall be amended to read in a certain way. In preparing the form of the ballots, therefore, you are advised that after setting forth the list of candidates in the usual way, the proposed constitutional amendments should be printed in substantially the following form:

PROPOSED AMENDMENTS TO THE CONSTITUTION.

A Cross (X) marked in the square at the right of the word "Yes" indicates a vote FOR the Amendment.

A Cross (X) marked in the square at the right of the word "No" indicates a vote AGAINST the Amendment.

PROPOSED AMENDMENT NO. 1.

SHALL SECTION EIGHT, ARTICLE IV OP THE CONSTITUTION BE AMENDED SO AS TO READ AS FOLLOWS?

He shall nominate, and, by and with the advice and consent of two-thirds of all the members of the Senate, appoint a Secretary of the Commonwealth and an Attorney General during pleasure, a Superintendent of Public Instruction for four years, and such other officers of the Commonwealth as he is or may be authorized by the Constitution or by law to appoint; he shall have power Yes. to fill all vacancies that may happen, in offices to which he may appoint, during the recess of the Senate, by granting commissions which shall expire at the end of their next session; he shall have power to fill any vacancy that may happen, during the recess of the Senate, in the office of Auditor General, State Treasurer, Secretary of Internal Affairs or Superintendent of Public Instruction, in a judicial office, or in any other elective office which he is or may be authorized to fill; if the vacancy shall happen during the session of the Senate, the Governor shall nominate to the Senate, before their final adjournment, a proper person to fill said vacancy; but in any such case of vacancy, in an elective office, a person shall be chosen to said office on the No. next election day appropriate to such office according to the provisions of this Constitution, unless the vacancy shall happen within two calendar months immediately preceding such election day, in which case the election for said office shall be held on the second succeeding election day appropriate to such office. In acting on executive nomination the Senate shall sit with open doors and, in confirming or rejecting the nominations of the Governor, the vote shall be taken by yeas and nays, and shall be entered on the Journal.

Yes

No

This disposes of your first and second inquiries.

In your third inquiry you ask whether the schedule should be placed on the ballot in the form of a question. In the case of Commonwealth vs. Clark, 7 W. & S., 127, Chief Justice Gibson, in referring to the schedule of the Constitution of 1838, said:

"It is a temporary provision for the preparatory machinery necessary to put the principles of the amendments in motion without disorder or collision. Its purpose was not to control those principles by the happening of an event, but to carry the whole into effect without break or interval. Its use was merely to shift the machine gradually into another track, and having done its office, it was to be stowed away in the lumber-room of the government. Nothing was further from the purpose of the convention than to make anything contained in it a matter of permanent regulation. Its uses were temporary and auxiliary."

On the other hand, in the case of Commonwealth vs. Pattison, 109 Pa., 165, it was held that Section XVI of the schedule to the present Constitution, prescribing the method of ascertaining which one of the judges learned in the law shall serve as president judge of a judicial district in which there are two or more such judges, is of permanent and not of temporary force.

When the present Constitution was submitted to the qualified electors of the Commonwealth, under the ordinance of the Constitutional Convention of November 3, 1873, no distinction seems to have been made between approving the Constitution and the Schedule. Under the terms of that ordinance the ballots were to be printed in the following form:

"On the outside the words 'New Constitution.' In the inside, for all persons giving affirmative votes, the words 'For the New Constitution,' and for all persons giving negative votes, the words 'Against the New Constitution.'"

The Schedule seems to have been treated as a part of the Constitution and approved as a part thereof. A different situation presents itself at this time, for we have ten proposed amendments which must be voted upon separately, and a Schedule which will only be of use in case the amendments are approved by the electors.

The amendments now proposed to the Constitution materially affect the length of the terms of office of many officers and the time of their election. The Schedule declares how the proposed amendments are to be put into operation without confusion or disorder. It is to be borne in mind that we are not now dealing with any question of legislation, but with the exercise of the power of the people of this Commonwealth to amend its Constitution.

If these amendments are approved by a majority of those voting thereon they become at once a part of the Constitution. The qualified electors of the Commonwealth, and they alone, have the right to prescribe how the proposed amendments, in case they are approved, shall be put into operation.

You are therefore advised that the Schedule should be printed on the ballot in the form of a question substantially in the form of the questions relative to the proposed amendments. 1 would suggest substantially the following form:

PROPOSED SCHEDULE FOE THE FOREGOING PROPOSED AMENDMENTS TO THE CONSTITUTION.

A Cross (X) marked in the square at the right of the word "Yes" indicates a vote FOR the Schedule.

A Cross (X) marked in the square at the right of the word "No" indicates a vote AGAINST the Schedule.

SHALL THE FOREGOING PROPOSED AMENDMENTS BE CARRIED INTO OPERATION UNDER THE FOLLOW ISO SCHEDULE. In the case of officers elected by the people, all terms of office fixed by act of Assembly at an odd number of years shall each be lengthened one year, but the Legislature may change the length of the term, provided the terms for which such officers are elected shall always be for an even number of years. The above extension of official terms shall not affect officers elected at the general election of one thousand nine hundred and eight; nor any city, ward, borough, township, or election division officers, whose terms of office, under existing law, end in the year one thousand nine hundred and ten. In the year one thousand nine hundred and ten the municipal election shall be held on the third -Tuesday of February as heretofore; but all officers chosen at that election to an office the regular term of which is two years, and also all election officers and assessors chosen at that election, shall serve until the first Monday of December in the year one thousand nine hundred and eleven. All officers chosen at that election to offices the term of which is now four years, or is made four years by the operation of these amendments or this schedule, shall serve until the first Monday of December in the year one thousand nine hundred and thirteen. All justices of the peace, magistrates, and aldermen, chosen at that election, shall serve until the first Monday of December in the year one thousand nine hundred and fifteen. After the year nineteen hundred and ten and until the Legislature shall otherwise provide, all terms of city, ward, borough, township, and election division officers shall begin on the first Monday of December in an odd numbered year. All city, ward, borough and township officers holding office at the date of the approval of these amendments, whose terms of office may end in the year one thousand nine hundred and eleven, No. shall continue to hold their offices until the first Monday of December of that year. All judges of the courts for the several judicial districts, and also all county officers, holding office at the date of the approval of these amendments, whose terms of office office may end in the year one thousand nine hundred and eleven, shall continue to hold their offices until the first Monday of January, one thousand nine hundred and twelve.	Yes X
No.

This disposes of all of the inquiries submitted to this Department by you in connection with this matter, and you are advised to advertise the proposed constitutional amendments and the schedule and to prepare the form of the ballots for the ensuing election in the manner set forth in this opinion.

Yours very truly,

M. HAMPTON TODD, Attorney General.