Pennsylvania Advisory Opinions August 21, 1913: AGO 52

Advisory Opinion Text

PAY OF ELECTION OFFICERS.

The Judges, inspectors and clerks of the district election boards throughout the State except in Philadelphia elected or appointed after June 2, 1913 shall receive five dollars per day for all services in conducting each primary election.

Hon. A. W. Powell, Auditor General, Harrisburg, Pa.

Sir: This Department is in receipt of your communication of August 5th, 1913, asking to be advised whether the Act of June 27, 1913, providing, in substance, that from and after the passage of the Act the pay of judges, inspectors and clerks at all elections to be held within this Commonwealth (except in a city co-extensive with a county) shall be five dollars each for all services rendered iu the conducting of said election, and repealing all general, local and special laws inconsistent therewith, is to be considered as the act fixing the compensation to be -paid to election officers for holding the primary elections provided for by the Act of July 12, 1913, and if so, whether the provisions of said Act of June 27, 1913, are applicable to election officers elected or appointed prior to the said 27th day of June, 1913.

Election officers are constitutional officers, the election of judges and inspectors, and the appointment of clerks being provided for by Section 14 of Article VIII of the Constitution, by which Section it is provided that "District election boards shall consist of a judge and two inspectors, who shall be chosen annually by the citizens. Each elector shall have the right to vote for the judge and one inspector, and each inspector shall appoint one clerk, etc."

By virtue of the constitutional amendments of 1909 election officers are to be chosen bi-ennnially at municipal elections.

Without reference to prior acts fixing the compensation of election officers, which acts are immaterial to the present inquiry, it is to be noted that by the Act of June 24, 1895, P. L. 237, it was provided that the pay of judges and inspectors at all elections should be three dollars and a half each at each election, without regard to time, and that the pay of the several clerks to each election board should be three dollars each, without regard to time, and that by the Act of April 16, 1903, P. L. 220, this Act was amended so as to provide that the pay of the judges and inspectors and several clerks to each election board at all elections, should be three dollars and a half, at each election, without regard to time.

The Uniform Primaries Act of February 17, 1906, P. L. 36, enacted that the primaries provided for by that act should be conducted by the regular election boards, and that the members of such boards should receive one-half the compensation for their services that they received at general elections. Under the Act of 1906 the polls at primary elections were required to be open between the hours of two o'clock P. M. and eight P. M.

Thus stood the legislation of the Commonwealth at the time of the enactment of the said primary act of July 12, 1913, and the said Act of June 27, 1913, regulating the pay of election officers and clerks.

By Section 11 of the new primaries act, it is provided that:

"The primaries shall be conducted by the regular election boards duly elected under existing or future laws, who shall receive the same compensation for their services as they receive at elections. Inspectors of elections shall have the right to appoint clerks to assist them as at elections, who shall receive the same compensation that clerks receive for such services at elections. Vacancies in election boards shall be filled in the manner now provided by law. Before entering upon their duties the election officers and clerks shall be sworn and execute written oaths, as is now required by law.

"The polls shall be open between the hours of seven o'clock ante meredian and seven o'clock post meridian."

By the express terms of this provision the judges and inspectors of the regular election boards are required to conduct the primaries provided for in the Act. Inspectors are authorized to appoint clerks in the same manner as clerks are appointed at general elections. Evidently because, under the new primaries Act, the polls are to be open between the hours of seven o'clock A. M. and seven P. M., it is provided that the members of the regular election boards and their duly appointed clerks, shall receive the same compensation for services rendered at primary elections as they are entitled to receive at other elections.

You are accordingly advised that subject to the qualification hereinafter mentioned, the judges, inspectors and clerks of the district election boards throughout this Commonwealth (except in a city co-extensive with a county), will be entitled to receive five dollars each for all, services rendered in the conducting of each primary election.

In my opinion, the compensation of five dollars for such judge, inspector and clerk for all services rendered in the conducting of an election, is intended as the compensation for election officers at-all elections, whether general, municipal, primary or special.

Thus far we have been discussing only the general proposition whether the Act of June 27, 1913, regulating the pay of election officers and clerks, is intended to apply to primary elections, and have answered that proposition in the affirmative. This general conclusion, however, is subject to the constitutional qualification expressed in Section 13 of Article III of the Constitution, to the effect that "no law shall extend the term of any public officer, or increase or diminish his salary or emoluments, after his election or appointment."

That judges and inspectors of elections are public officers within the terms of the above quoted section of the Constitution, was decided in the case of Goodman vs. the County Commissioners of Huntingdon County, 17 Pa. C. C. 393. In that case an inspector of elections elected to said office on the third Tuesday of February, 1895, for the Third ward of the Borough of Huntingdon, claimed to be entitled to the compensation fixed by the above quoted Act of June 24, 1895, P. L. 237. In disposing of this contention, the Court said:

"The Act under which the petitioner claims pay was passed after his election. Its purpose was to change the pay of election officers, and whether its effect would be to either increase or diminish it, it cannot be held to apply to officers elected before its passage. As to them it is clearly within the inhibition of the constitutional provisions referred to, which prohibits the passage by the legislature of any law which shall increase or diminish the salary of any public officer after his election. It cannot be pretended that the legislature in-, tended to do what the Constitution prohibited, therefore, this Act of 1895 must, in our opinion, be construed to apply only to officers elected after its passage.

"The petitioner is entitled to receive pay under the provisions of the law as it stood at the time of his election and not under the Act of 1895." '

You are accordingly advised that the compensation of five dollars each, fixed by the said Act of June 27, 1913, for all services rendered in the conducting of elections, will be payable to all judges, inspectors and clerks of elections elected or appointed in any election district of the Commonwealth (except in a city co-extensive with a county) after the 27th day of June, 1913, for their services at subsequent primary elections; and that all election officers elected or appointed prior to the said 27th day of June, 1913, rendering services during their existing terms of office at subsequent primary elections will be entitled to receive for such services such compensation as is provided by existing legislation exclusive of said Act of June 27, 1913.

Very truly yours,

J. B. B. CUNNINGHAM, First Deputy Attorney General.