Pennsylvania Advisory Opinions December 31, 1919: AGO 34

Advisory Opinion Text

CUTSHALL'S CASE.

The manifest purpose of the act of April 26, 1889, P. L. 60, was to prevent an interregnum in any office pending a contested election, it being against the public interest that there should be a vacancy therein.

James A. Snodgrass received 5,160 votes for the office of sheriff on the Republican ticket, H. B. Cutshall received 4,896 votes on the Democratic ticket and H. Cutshall received 380 votes on the Prohibition ticket; pending a petition on behalf of H. B. Cutshall contesting the election of Snodgrass on the ground that H. B. Cutshall and H. Cutshall are one and the same person, a commission should issue to the said Snodgrass for sheriff.

Office of the Attorney General, Honorable Cyrus E. Woods, Secretary of the Commonwealth, Harrisburg, Pa.

Sir: This Department is in receipt of your communication of the 29th ultimo asking to be advised whether the Governor should issue a commission to James A. Snodgrass as Sheriff of Crawford County, pending the decision of the Court In re the contested election of the said James A. Snodgrass to said office.

From the information before this Department in this matter it appears that at the election held on November 4, 1919, James A. Snodgrass received 5160 votes for the office of Sheriff on the Republican ticket; that H. B. Cutshall received 4896 votes on the Democratic ticket for said office, and H. Gutshall received 380 votes for said office on the Prohibition ticket.

On November 7th the said H. B. Cutshall filed a petition in the Court of Common Pleas of Crawford County averring, inter alia, that H. B; Cutshall and H. Cutshall are one and the same individual, and praying the Court "to compute the votes so cast on the Democratic and Prohibition tickets for 'Gutshall' as cast for 'H. B. Cutshall,'" and to certify that the said H. B. Cutshall received a majority of all the votes cast for the office of Sheriff of Crawford County.

In an opinion filed by Judge Prather on December 1, 1919, the foregoing petition was quashed on the ground that the Court of Common Pleas did not have jurisdiction to hear and grant the prayer of the Petitioner, and that the question involved in this contest properly belonged to a contested election in the Court of Quarter Sessions. It further appears that the Court of Common Pleas of said County of Crawford with his assistants, sitting as a Computing Board, certified and returned that James A. Snodgrass was duly elected to the said office of Sheriff of Crawford County. On the fourth day of December, 1919, a petition was filed in the Court of Quarter Sessions of said County, on behalf of the said H. B. Cutshall, contesting the election of the said James A. Snodgrass as Sheriff, and averring, inter alia, that

"On the face of the returns it appearing that James A. Snodgrass, Republican, received a plurality of the votes cast at said general election for the office of Sheriff of Crawford County, the Court of Common Pleas of said County with his assistants sitting as a computing board certified and returned that James A. Snodgrass was duly elected to the said office of Sheriff of Crawford County. * * * *

"That the Court of Common Pleas erred in counting and certifying the votes cast for H. B. Cutshall, Democrat, and H. Cutshall, Prohibition, separately, but should ha,ve cumulated the same, and by so doing H. B. Cutshall would have been duly and regularly elected to the office of Sheriff of the County of Crawford, and by counting said votes separately for H. B. Cutshall. Democrat, and H. Cutshall, Prohibition, as two separate and distinct persons H. B. Cutshall was defeated and denied the right to the office of Sheriff of Crawford County, to which he is of right justly entitled."

The Court fixed Tuesday, December 23, 1919, as the time for hearing said petition. So far as this Department is advised, there has been no determination as yet of the case, but the same remains pending.

It also appears that Mr. Snodgrass has filed his bond and recognizance as Sheriff, duly approved by the Judge of the County and the Governor, in the office of the Secretary of the Commonwealth.

The" Act of April 26, 1889, P. L. 60, provides for the issuing of commissions in cases of contested elections. It is thereby made the duty of the Governor in the case of any officer receiving a commission from the Governor

“ * * * To issue a commission to such person, notwithstanding that the election of such person to any or either of said offices may be contested, in the manner now provided by law: Provided, That whenever it shall appear by the decision of the proper tribunal having jurisdiction of said contested election, that the person to whom said commission shall have issued, has not been legally elected to the office for which he has been commissioned, then a commission shall issue to the person who shall appear legally elected to said office; the issuing of which commission shall nullify and make void the commission already issued, and all power and authority under said commission first issued, shall thereupon cease and determine."

The manifest purpose of this Act was to prevent an interregnum in any office pending a contested election, it being against public interest that there should be a vacancy therein.

Under the facts in this case and pursuant to the above Act of Assembly, you are, therefore, advised that a commission should issue to the said James A. Snodgrass as Sheriff of Crawford County.

Very truly yours,

WILLIAM I. SCHAFFER, ATTORNEY GENERAL.