Pennsylvania Advisory Opinions May 07, 1910: AGO 54

Advisory Opinion Text

WILLIAM PENN PARTY'S PETITION .

Whether the William Penn Party, having heretofore voted more than the 2 per centum of the largest vote for Philadelphia county officers only, has the right, under the Act of Feb. 17, 1906, P. L. 36, to have the name of a candidate for state senator printed on the official primary ballot for the spring election, is a judicial question, depending upon whether its objects and purposes are of a general concern and the alleged party "a body of electors" or "an association of electors not constituting a party."

The secretary of the commonwealth is not invested with judicial or discretionary powers, and, being satisfied that the William Penn party polled at the last general election 2 per centum of the entire vote in the senatorial district, should receive and file its nomination for state senator, to be printed on the official primary ballot, leaving any one desiring to contest the right to his remedy at law.

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

Sir: This Department is in receipt of your inquiry under date of May 5, 1910, asking to be advised whether, as Secretary of the Commonwealth, you should receive and file a certain petition, signed by the requisite number of the members of an alleged political party known as the William Penn Party, to have the name of a candidate of that party for the office of Senator in the General Assembly to represent one of the Senatorial Districts of the City of Philadelphia printed on the official primary ballot for the ensuing spring primary election.

I understand from your communication that the highest number of votes cast in this State for any candidate at the last general election was 811,179, and that the said William Penn Party, at the last general election, polled for one of its candidates for a county office in the County of Philadelphia, 88,307 votes, and at the February election, of 1910 polled for one of its candidates 42,745 votes, all of which votes were polled in the City of Philadelphia.

The petition in question was presented to you for filing under the Uniform Primaries Act of February 17, 190G, (P. L. 36), an act which provides a uniform method of electing certain party officers and delegates to State and national conventions, and a uniform method of making nominations for certain public offices.

Under this act candidates for all offices to be filled at the general election, with the exception of those nominated by national or State 'conventions, are to be nominated at the Spring primary, and nominations may be made "by any political party or body of electors, one of whose candidates, at either the general or February elections preceding such primary, polled two per centum of the largest entire vote cast in the political district in which nominations are to be made, or candidates elected, for any candidate at the last general election."

This provision differs from the provision relative to the election of delegates to State and national conventions in that such delegates are to be elected at the Spring primary "throughout the Commonwealth by any party or body of electors, one of whose candidates, at either the general or February election preceding, polled two per centum of the largest entire vote cast in the State for any candidate at the last general election."

Your inquiry, however, relates only to the question of the nomination of a candidate for the office of State Senator, which, under the general election law, is a State office. The question arising under your inquiry is whether the William Penn Party is such a political party, or body of electors, in a legislative sense, as is entitled to file the petition in question under the said Uniform Primaries Act, or whether it is merely "an association of electors not constituting a party," which under said act can make nominations only by nomination papers, as provided by existing laws.

Under the facts stated in your letter, the vote upon which the William Penn Party claims the right to file the petition in question was cast for county officers and was confined to the County of Philadelphia. Having heretofore, apparently, confined its activities to elections for county officers and within the confines of Philadelphia County, the query arises whether it is now entitled to file the petition in question for the office of Senator from one of the districts of the City of Philadelphia.

To be entitled to file the said petition the William Penn Party must, under the provisions of the second section of the Uniform Primaries Act, have polled, at either the last general or February election, two per centum of the largest entire vote cast for any candidate at the last general election, in the political district in which the nomination is to be made, i. e., the senatorial district in question. The figures for this political district are not set out in your inquiry, but, assuming that inasmuch as the William Penn Party cast, in the City of Philadelphia, far more than two per centum of the largest entire vote cast in the whole State for any candidate at the last general election it did in fact poll more than two per centum of the largest entire vote cast in the senatorial district in question, for any candidate at the last general election, the only objection to treating the William Penn Party as a political party entitled to file the certificate now before you would be the fact that it seeks to be a local organization, confined to-a particular section, or district, of the State.

It has been said by our courts that it is not necessary that a political party should have supporters in every political subdivision of the State, but its object and purpose should be of general concern, so that it can invite to its support the people of the State irrespective of locality.

Whether, in view of the number of votes polled by the William Penn Party for county officers in Philadelphia County at the general election and at the February election preceding the primary in question, and the facts and circumstances indicating the territorial extent of its activities, it is "a political party, or body of electors," entitled to hie the petition now tendered to you, or merely an "association of electors not constituting a party" is a judicial question to be determined after a full investigation into all the facts.

As Secretary of the Commonwealth you are not invested with judicial or discretionary powers, and you are therefore advised that if you are satisfied that the William Penn Party polled, at either the last general or February election, two per centum of the largest entire vote cast in the Senatorial District for which a nomination is now sought to be made, for any candidate at the last general election, you should receive and file the certificates in question, leaving any person, or persons, desiroiis of contesting the right of the William Penn Party to have the name of its candidate for Senator printed on the official ballot for the political division in question to their remedy at law.

Very truly yours,

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