Pennsylvania Advisory Opinions April 13, 1904: AGO 73

Advisory Opinion Text

MINE INSPECTORS-ELECTION OF-TERM OF INCUMBENT EXPIRING SEPT. 25, 1905-ACTS OF JUNE 2, 1891, AND JUNE 8, 1901.

No election of a mine inspector to take the place of an inspector appointed under the act of June 2, 1891, P. L. 176, whose term does not expire until September 25, 1905, can, under the act of June 8, 1901, P. L. 535, relating to the election of mine inspectors, be held until the general election of November, 1905.

Hon. James E. Roderick, Chief of the Department of Mines:

Sir: I have before me your letter of to-day, stating that the term of William Stein as Mine Inspector in Schuylkill county expires on September 25, 1905, and asking whether or not his successor can or should be chosen at the general election to be held in November next.

Under the provisions of the act of 2d of June, 1891 (P. L. 176) the Mine Inspectors in the Anthracite Region were appointed by the Governor upon the recommendation of the Board of Examiners, from time to time as vacancies occurred, for a period of five years. The Legislature of 1901, by the passage of the act of June 8 (P. L. 535), changed this method of selection, and provided that the office of Mine Inspector should be filled by the votes of the qualified electors of the district at the general elections to be held in November. This act, however, provided for the retention of the inspectors then serving under the appointment by the proviso to section 7, which reads as follows:

"That the present mine inspectors in the several inspection districts shall continue in office until the expiration of the terms for which they have been appointed, and the number of inspectors to be elected at the coming election shall be reduced by the number of inspectors now regularly appointed and serving in said districts. When the terms of the present inspectors shall expire, their successors shall be elected in accordance with the provisions of this act."

It is clear from this language that no election can be held to select a successor to a present incumbent until the expiration of his term of office.

Section 11 of the later act fixes the length of the term, and provides when the same shall begin in the following language:

"Each of the said inspectors shall hold said office for a term of three years from the first Monday of January immediately succeeding his election to said office, and until his successor is duly elected and qualified."

An inspector elected in November, 1904, would, under this act assume the duties of his office on the first day of January, 1905, nine months before a vacancy would occur by the expiration of the term of William Stein. The uncertainty which prompts your inquiry no doubt arises from the fact that the term of Mr. Stein expires prior to the general election in November, 1905, which will cause a vacancy in the office until January 1, 1906, when the inspector regularly elected will assume his duties. Contingencies like this necessarily arise by reason of the fact that the terms of the various appointed inspectors expire at different times, but when the positions shall all be filled by election, then the terms will be uniform and this trouble will come to an end.

The act of 1901, however, makes ample provision for filling vacancies of this kind by appointment, as will be apparent by an examination of section 13, which reads as follows:

. "In case of death, resignation, removal from office, or other vacancies in the office of mine inspector before the expiration of said term of office, the judges of the court of common pleas of the county in which said vacancy occurs shall appoint a duly qualified person to fill the said vacancy for the unexpired term. Said appointment to be one of the persons having filed with the county commissioners of said county a certificate from the board of examiners, showing he passed a successful examination before the said board, and is duly qualified as hereinbefore mentioned."

After a thorough examination of the law and the facts in connection therewith, I am of the opinion and advise you that no election of a mine inspector can legally be held in Schuylkill county in November next to take the place of William Stein, as there will be no' vacancy in the office now held by him until the expiration of his term on September-25, 1905, and his successor should be selected at the general election to be held in November of that year.

Very respectfully,

FREDERIC W. FLEITZ, Deputy Attorney General.