Pennsylvania Advisory Opinions September 17, 1910: AGO 17

Advisory Opinion Text

JUSTICE OF THE PEACE.

The Borough of Catasauqua is entitled to two Justices of the Peace. Held, that there being two in commission, F. Joseph Wehrle is not entitled to a commission. Decisions reviewed.

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

Sir: Some time ago you transmitted to the Attorney General the correspondence with Mr. Edmund Randall, which raised the question of the right of F. Joseph Wehrle to a commission as a justice of the peace of the Borough of Catasauqua, and you asked to be advised whether Mr. Wehrle is entitled to such commission.

The facts were not sufficiently disclosed in the communications and this department has since been endeavoring to have the necessary facts certified to it. It appears that the Borough of Catasauqua was incorporated on the first of February, 1853, pursuant to the General Borough Law approved April 3, 1851, (P. L. 320); that on the 19th of February, 1877, by decree of the court, the borough was divided into two wards, known as the First and Second Wards; and that on the 6th of December, 1909, the First Ward, by decree of court, was further divided into two wards, known as the First and Third Wards, so that the borough now has three wards. It also appears from the records in your office that there are two justices of the peace commissioned for the First Ward of Catasauqua, and the term of one, George H. Bichter, expired on the first Monday of May, 1910, and that there are two justices of the peace commissioned for the Second Ward, both still in commission.

That on the 19th day of February, 1910, the Prothonotary of Lehigh County returned F. Joseph Wehrle as elected justice of the peace of Catasauqua Borough to succeed George H. Bichter, who was in commission as a justice of the peace of the First Ward and whose term expired. No ward was named by the Prothonotary in the returns of the election of F. Joseph Wehrle.

I have been unable to get a certificate from the Prothonotary of the fact, but upon inquiry, and from a letter of the Honorable Arthur G. Dewalt, I am advised that justices of the peace have been elected in the Borough of Catasauqua for a period of at least ten years by the borough at large and not by wards, and the returns of the respective elections of justices of the peace now in commission, as printed in the Catasauqua Dispatch of February 24, 1906, February 22, 1908, and February 20, 1909, show that the justices were elected by the whole borough at large and not by wards.

The question for determination, therefore, is whether the Borough of Catasauqua is entitled to elect justices of the peace for the several wards, or whether it is entitled to elect two justices of the peace for the borough.

It appears that Hon. Henry W. Palmer, Attorney General, on March 19, 1879, advised the Secretary of the Commonwealth that the Borough of Catasauqua was entitled to elect two justices of the peace for each ward, basing his opinion upon the conclusion that inasmuch as the borough was divided into two wards on the 19th of January, 1877, prior to the passage of the Act of May 10, 1878, (P. L. 51), that the borough was not affected by that act; and Honorable Robert Snodgrass, Deputy Attorney General, advised the Secretary of the Commonwealth, on April 29, 1885, that he adhered to the opinion formerly given, that the borough was entitled to two justices of the peace for each ward, but basing his conclusions upon Section 12 of Article V of the Constitution, which provides:

"Except as otherwise provided in this Constitution, justices of the peace or aldermen, shall be elected in the several wards, districts, boroughs and townships at the time of the election of constables, by the qualified electors thereof."

He said

"That when the borough of Catasauqua was divided into two wards under the provisions of the Act of 1874, each ward became entitled to two justices to be elected by the 'qualified voters thereof,' and this right, I think, accrued under the Act of 1S39, as well as under the Constitution itself."

In this opinion reference was made to the case of Commonwealth vs. Patterson, decided by Judge Simonton, and since reported in 1 Lancaster Law Review, 252. Since these opinions by the learned Attorneys General, in reference to the Borough of Catasauqua, these various acts of assembly and the constitutional provisions have received judicial construction at variance with the conclusions reached in the opinions referred to.

The Act of June 21, 1839 (P. L. 376) provides for two justices of the peace for each ward. The General Borough Law of April 3, 1851 (P. L. 320), provides for two justices of the peace for the borough, but Section 26 of that act declares distinctly:

"This section shall not be so construed as to authorize the commissioning of, or to have commissioned, more than two justices at the same time residing within said borough, and unless, under the provision of existing laws, they have increased the number of justices within any such borough or boroughs."

The Act of May 14, 1S74 (P. L. 159) prescribes the manner in which courts may divide boroughs into wards, and the Act of May 10, 1978 (P. L. 51) is a supplement to the Act of 1874. This latter act provides in its first section that

"Whenever any borough in this Commonwealth may be divided into wards, in accordance with the provisions of the act to which this is a supplement, every such ward from and after such division shall be a separate election district, and annually thereafter shall elect not less than one nor more than three members of the borough councils, and shall elect such other public officers as are authorized in boroughs, wards and election districts under existing laws; provided, however, that is every such borough there shall be elected a burgess, assign™* burgess, two justices of the peace," etc.

In Commonwealth ex rel. Fox vs. Pattison, 2 Dist. Rep. 128, decided by Judge Simonton, the syllabus is:

"Where a borough, already divided into two -wards, is, by provisions under these acts, still further divided, it results that the provisions of the Act of June 21, 1839, for two justices of the peace for each ward, does not apply, but the borough is entitled, under the Act of 1878, . to only two justices of the peace, to be elected by the concurrent votes of the several wards."

In the case of Commonwealth ex rel. Fenner, vs. Pattison, 3 Dist. Eep. 599, decided by Judge McPherson, it is held that the Act of 1878 repeals the Act of 1839, and that the former act applies to all boroughs divided into wards, whether the division was made before or after the passage of that act. This decision overrules the opinions of the learned Attorneys General already referred to, and the Borough of Catasauqua is within the terms of the first case cited, because the First Ward of that borough was sub-divided in 1909.

In the case of Commonwealth vs. Morgan, 178 Pa. 199, the controversy seems to be settled. In that case the Borough of Mahanoy City was incorporated in 1863, under the General Borough Law. Two years later, in 1865, it was divided into wards by special act of assembly. It will be noted that it was not divided into wards, as the Borough of Catasauqua was, under the provisions of the Act of 1874, but in March 1875 one of the wards was sub-divided, under the provisions of the Act of 1874, as was the First Ward of Catasauqua in 1909. The, defendant was elected justice of the peace by the voters of the Fifth Ward only, and it was his title to office that was questioned, there being two other persons elected by the votes of the entire borough. Judge McPherson, in an elaborate opinion which was adopted by the Supreme Court, and which reviewed all the Acts of Assembly and constitutional provisions on the subject, concluded that the Act of 1839 was repealed by the General Borough Law of 1851, which established a new rule for all boroughs incorporated under that law, and that where the boroughs incorporated under the General Law of 1851 have been divided into wards under the Acts of 1874 and 1878, only two justices shall be elected by the votes of the entire borough. Judge McPherson refers to the case of Commonwealth vs. Pattison, I Lancaster Review, 252, cited by Deputy Attorney General Snodgrass, and practically overrules it, and the only essential difference between the case of Commonwealth vs. Morgan and this case is that in this case F. Joseph Wehrle was voted for by the voters of the entire Borough of Catasauqua, but I am of opinion, under the authorities cited, that the Borough of Catasauqua is entitled to only two justices of the peace, and as there are now more than two justices of the peace in commission, there was no office of justice of the peace to be filled by the election in 1910.

I therefore conclude and so advise you that F. Joseph Wehrle was not legally elected justice of the peace of Catasauqua Borough and is not entitled to a commission.

Very truly yours,

WM. M. HAKGEST. Assistant Deputy Attorney General.