Pennsylvania Advisory Opinions March 31, 1910: AGO 53

Advisory Opinion Text

JUDICIAL TERMS.

Judges - Terms - Constitutional amendments.

The effect of the amendments to the constitution, adopted Nov. 2, 1909 (P. L. 1909, page 948), is that no judges can be elected at the general election held in November, 1910, and this applies as "well to judges who hold their office by election as to those appointed by the Governor.

All judges holding office at the date of the approval of the amendments adopted Nov. 2, 1909, whose terms would expire in 1911, will continue to hold their offices until the first Monday of January, 1912, without other or further commission; but since the absence of a commission might be made the basis of objection to the right to exercise judicial functions during the extended year, commissions therefor should be issued.

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

Sir: I have your letter of the 17th inst, enclosing a letter of Hon. Alonzo T. Searle, of the 10th inst., to Governor Stuart, and I note you request my opinion on the following questions:

1. Will the terms of Judges of the Courts of Common Pleas who were appointed to fill vacancies, and whose commissions expire on the first Monday of January, 1911, be extended for one year from that date by the constitutional amendments and schedule of 1909; and,

2. Can the office of Judge of the Court of Common Pleas, now held by Judges, under appointment of the Governor, whose commissions expire on the first Monday of January 1911, be filled by the election of Judges at the General Election in November, 1910 ?

I understand that Judge Searle was appointed on September 15, 1909, and commissioned until the first Monday of January, 1911. The amendments to the Constitution that were adopted at the election held November 2, 1909, which are pertinent to the questions you propound, are as follows:

Amendment Five, to Article Eight, Section Two, provides that the general elections shall be held biennially on the Tuesday next following the first Monday of November in each even numbered year.

Amendment Six, to Article Eight, Section Three, provides that the municipal elections shall be held on the Tuesday next following the first Monday of November in each odd numbered year. This is supplemented by a provision in the Schedule, that, in the year 1910,'the municipal election, shall be held on the third Tuesday of February as heretofore.

Amendment Eight, to Article Twelve, Section One, provides that elections of State officers shall be held on a general election day, and that elections of local officers shall be held on a municipal election day, except when, in either case, special elections may be required ' to fill unexpired terms.

Amendment Six, to Article Eight; Section Three, provides that all elections for judges of the courts of the several judicial districts, and for county, city, ward, borough and township officers, for regular terms of service, shall be held on the municipal election day; namely, the next Tuesday following the first Monday of November in each odd numbered year.

The Schedule provides that all judges of the courts for the several judicial districts, and also all county officers holding office at the date of the approval of these amendments, whose terms of office may end in the year one thousand nine hundred and eleven, shall continue to hold their offices until the first Monday of January, one thousand nine hundred and twelve.

The effect of these amendments to the Constitution and the Schedule is:

1. That general elections shall be held only in even numbered years;

2. After the municipal election which was held in February, 1910, the municipal elections will be held only in odd numbered years;

3. That the judges of the courts of the several judicial districts are to be elected only at the municipal elections. The reference in Amendment Eight to special elections to fill unexpired terms has no application to these judges, who are elected for full terms of service, whether their predecessors in office had served full terms or not;

4. No election can be held under these amendments, at which these judges can be elected, until the municipal election in November 1911;

5. The terms of all judges of the courts of the several judicial districts, holding office at the date of the approval of the amendments ..........November 2, 1909, ..........whose terms will expire in 1911, will continue to hold their offices until the first Monday of January, 1912.

Alonzo T. Searle held the office of Judge for the 22nd Judicial District on November 2, 1909, the date when the amendments were adopted by the people at the general election held on that day, and I am of opinion that, by virtue of the last clause of the Schedule, he will continue to hold that office until the first Monday of January, 1912, and his successor will be elected at the municipal election held in November, 1911. This opinion will extend to all other judges of judicial districts whose terms will expire in 1911.

I am also of opinion that the Schedule has the effect of continuing such judges in office without any other or further commission, but, inasmuch as the absence of a commission might be made the basis of objection to the right of such judges to exercise the judicial function during the extended year, I am further of opinion that a commission should be issued to them, to expire on the first Monday of January, 1912, and that the records of your office should be examined, the names of such judges ascertained and commissions issued to them accordingly.

In answer to your second inquiry I am of opinion that no judges can be elected at the general election held in November, 1910, and that this applies as well to judges who hold their office by election as to those appointed by the Governor.

Very truly yours,

M. HAMPTON TODD, Attorney General,