Pennsylvania Advisory Opinions March 09, 1922: AGO 25

Advisory Opinion Text

State Senator-Prohibition Director-Resignation-Recall of Same-Article II, Section 6, of the Pennsylvania Constitution.

A member of the senate of Pennsylvania is prohibited by Section 6 of Article II of the Constitution from holding any office under the United States, so that when a state senator accepted the appointment of "Federal Prohibition Director of the State of Pennsylvania" and then sent his resignation to the Lieutenant Governor, during a recess of the senate, this resignation could not be recalled later when the senator resigned his Federal office, even if the resignation had not been accepted. This vacancy could be filled only by an election.

Office of the Attorney General, Honorable Bernard J. Myers, Secretary of the Commonwealth, Harris-burg, Pa.

Sir: I have your letter enclosing a letter received by you from the Lieutenant Governor informing you of the facts bearing upon the question whether there is a vacancy in the office of Senator from the Twenty-seventh District You desire to be advised whether the facts thus stated create a vacancy?

It appears that the Lieutenant Governor received from Senator William C. McConnell of said District a written resignation effective as of the fifteenth of July, 1921, which resignation stated that it was tendered "in view of my appointment as Federal Prohibition Director of the State of Pennsylvania." It appears further that on the twenty-seventh of January, 1922, the Lieutenant Governor received from Senator McConnell a second communication requesting the return of the said resignation for the reason that he was no longer holding the said office under the United States. He held the office from July, 1921, to January, 1922.

I do not think any difficult question is presented. Probably the resignation was not essential to the vacation of the office of Senator, but, in any event, it was a proper thing, making clear the Senator's attitude and giving official notice to the Lieutenant Governor, who under the Constitution is charged with the duty of calling special elections to fill vacancies in the Senate.

Section 6 of Article II of the Constitution of Pennsylvania provides that no person holding any office under the United States shall be at the same time a member of the Senate or House. No provision of the Constitution or Statutes of the Commonwealth could prevent the Senator from accepting and holding office under the government of the United States, but when he assumed that office it would seem clear that his membership in the Senate was terminated by operation of the Constitution. Otherwise, a situation would have existed which under the Constitution cannot exist-an officer of the United States holding membership in the Senate of Pennsylvania. The Senator's resignation indicated his recognition of the impossibility of such a situation.

It follows that the letter sent by Senator McConnell to the Lieutenant Governor on January 27, requesting the return of the resignation, can in no way affect the situation. Once the Senatorship is vacated it requires no reasoning to show that it cannot be resumed. The Constitution provides that vacancies shall be filled by election and they can be filled in no other way.

Of course under the Constitution the Senate is the sole judge of the qualifications of its members, but there is no way of obtaining its judgment at this time. Consequently, in deciding the present question we must be governed by our own judgment, and, in my opinion, the existence of the vacancy is quite free from doubt.

You are advised, therefore, that under the facts as stated there is a vacancy in the office of Senator from the Twenty-seventh District; that the Lieutenant Governor should issue a writ for a special election, and that in compliance therewith you should take the necessary measures to provide for the nomination and election.

Very truly yours,

GEO. E. ALTER, Attorney General.