Pennsylvania Advisory Opinions October 04, 1915: AGO 31

Advisory Opinion Text

FIFTY PER CENT. CLAUSE JUDICIAL ACT OF JUNE 18, 1915, P. L. 1050, DEFINED.

In determining whether a candidate has received a number of votes greater than one-half of the total number of votes cast for such office where there are two of more vacancies to be filled, it is proper to take the total number of votes cast for all of the candidates for such office and divide the total number by the number of vacancies to be filled.

The candidate must receive a number of votes greater than one-half of the total number cast for such office, determined as set out in the last preceding paragraph, and also a number greater than one-half of the number of ballots cast for "any one candidate, for any office in the political district or division within which the nomination is to be made," and, as hereinbefore stated, "any office" means such an office the jurisdiction of which is ordinarily limited to but includes the whole of such political district or division.

Hon. Cyrus E. Woods, Secretary of the Commonwealth, Harrisburg, Pa.

Sir: Your favor requesting an Opinion upon the Act of June 18, 1915, P. L. 1050, is at hand. You slate that there are two Judges to be elected in the Court of Common Pleas, No. 2, of Philadelphia County, and that there were a number of candidates at the Primary Election; that there are three Judges to be elected to the Superior Court, and that there were a, number of candidates at the Primary Election, and that you will soon have to construe this act of assembly in order to determine whether any of said candidates are the sole nominees.

You ask:

First: Whether in order to be a sole nominee a candidate must receive more than one-half of the total number of votes cast for all the candidates taken together, that is to say,, in the case of Count •of Common Pleas No, 2, of Philadelphia County, where, two are to be elected, whether the total number of votes cast for the offices of Judge of that Court is determined by taking one-half of the total votes for all of the candidates.

Second: Whether the additional requirement that in order to be the sole nominee, the candidate must receive a vote "greater than one-half of the number of ballots cast for any one candidate for any office in the political district or division within which the nomination is to be made," means that a candidate must receive more than fifty per cent, of the highest number of ballots cast for any candidate for any office, or whether it means that he must receive more than fifty per cent, of the ballots cast for any office at said election.

The Act provides:

"That whenever, at any primary, nominations are to be made of candidates to fill two or more vacancies, in any appellate or other court of record, composed of two or more judges, if any one or more of such candidates shall receive a number of votes greater than one-half of the total number of votes cast for such' office at such primary, and greater than one-half of the number of ballots cast for any one candidate for any office in the political district or divisions within which the nomination is to be made, then, and in such event, each of such candidates shall be the sole nominee for one of the respective vacancies in such office."

How are the number of "votes for such office" lo be ascertained? There is no statutory requirement for a return of the number of votes cast for any particular office. The return is made of the votes cast for the candidate, and in practice no return of the number of votes cast for any particular office is made. In the absence of any return of the number of votes cast, the only recourse must be had to the next best method of ascertaining the number of votes.

In the case of Court of Common Pleas No. 2, of Philadelphia County, each voter was entitled to vote for two candidates and the total number of voles returned therefor is presumably twice the number of voters who cast the votes.

In the case of Superior Court, each voter was entitled to vote for three candidates and the vole returned for all the candidates would be presumably three times the number of ballots cast.

Therefore, the next best and the only method is to take the total number of votes of all the candidates for the office and divide it by the number of offices to be filled for the purpose of ascertaining the total number of votes cast for such office.

The next question is:

What is meant by the words' "greater than one-half of the number of ballots cast for any one candidate for any office." Is this language intended to be a limitation upon the language which precedes it, namely, "a number of votes greater than one3ialf of the total number of votes cast for such office"?

It has been suggested that a candidate in order to be the sole nominee must receive more than one-hall' of the total number of votes cast for such office, and also a greater number than one-half of the ballots cast "for any office" at the same election, and that the intention of the Legislature was to relieve the candidate from, any further contest when more than one-half of the electors who voted at the primary voted for such candidate, and that to construe the language literally to mean only "greater than one-half of the number of ballots cast for any one candidate for any office," puts no limitation whatever on the number of votes and is meaningless.

It has also been suggested that this was not the intention of the Legislature, but that the real reason for this language was that experience has shown that all the voters do not Vote the non-partisan ballot and that, therefore, before a candidate may be the sole nominee, he shall not only have a greater number of votes than one-half the total number cast for such office, but also a greater number than one-half of the highest number of ballots cast for any office within the political district or division within which the nomination is to be made. This may have been the intention of the Legislature, but can this intention be gathered from the Act.

It is a well known principle of law that an act of assembly must be construed according to its 'reason and spirit and according to the intention of the Legislature, but it is equally well settled that the` intention of the Legislature must, if possible, be gathered from the language of the statute itself, and wherever possible, effect must be given to all of the language used.

To construe this act of assembly to require a sole nominee tn have more than fifty per cent, of the votes cast for the office for which he is a candidate and also a number greater than one-half of the ballots cast "for any office" one must eliminate the words "of any candidate." The language is not a number "greater than one-half of the number of ballots cast far any office", but it is "greater than one-half of the number of ballots .cast for any one candidate for any office'' The Legislature seemed to use the expression advisedly, because in the first paragraph of the section, as it is amended, in referring to the situation where there is but one office to be filled, it provides "(hat any person who shall receive a number of votes greater than one-half of the total number of votes cast for such office, at such primary and greater than one-half of the number of ballots cast in the political district of division within which the nomination is to be made," shall be the sole nominee. So that, adhering to the language of the Act, it appears that the Legislature designedly made a difference in Hie requirements where there was only one person to be elected and where there was more than one person to be elected. The language "for any one candidate for any office" is not ambiguous. It is plain, and being plain, it cannot be disregarded in construing the statue. The expression "any one candidate" can only mean in that connection "the candidate receiving the highest number of votes."

The second requirement of the Act of Assembly is that the sole nominee must have a number "greater than one-half the number of ballots cast for any one candidate for any office in the political district or division within which the nomination is to l·e made." The words "any office" means such an office, the jurisdiction of which is ordinarily limited to but includes the whole of such political district or division.

The political division or district within which the nomination of the Superior Court Judges is to be made is the Stale of Pennsylvania. Inasmuch as there was no candidate for any oilier office voted for a I the primaries "in the political district or division within which the nomination is to he made," to wil, the Stale, this requirement cannot apply to the present candidates for the Superior Court.

I, therefore, advise you:

First: That in determining whether a candidate has received a number of votes greater than one-half¯ of the total number of votes cast for such office where there are two or more vacancies to be filled, it is proper to take the total number of voles cast for all of the candidates for such office and divide the lotal number b,y the number of vacancies lo be filled.

Second: That the candidate must receive a number of votes greater than one-half of the total number east for such office, determined as set out in the last preceding paragraph, and also a number greater than one-half of the number of ballots cast for "any one candidate, for any office in the political district or division within which the nomination is to be made," and, as herein before stated, "any office" means such an office the jurisdiction of which is ordinarily limited to but includes the whole of such political district or division.

Very truly yours,

FRANCIS SHUNK BROWN, Attorney General.