Pennsylvania Advisory Opinions September 26, 1917: AGO 74

Advisory Opinion Text

VOTE OF SOLDIERS IN MILITARY SERVICE .

Under the Constitution, art. viii, § 6, and the Act of Aug. 25, 1864, P. L. 990, and the Constitutional Amendment of 1909, P. L. 951, soldiers, i. e., members of the National Guard who have been requisitioned into the service of the United States and members of the National Army under the conscription law, in actual military service are entitled to vote at the election in November, 1917.

Soldiers should be given opportunity to vote for township and municipal officers as well as county officers; but it is impracticable to furnish them ballots with the names of such township candidates printed thereon, or a pamphlet of information containing the names of the various township and district candidates.

The qualified electors in actual military service whose votes are to be taken are limited to those who are in service under a requisition from the President or by authority of this Commonwealth; this excludes soldiers of the United States Regular Army.

Honorable Cyrus E. Woods, Secretary of the Commonwealth, Harris-burg, Pa.

Sir: I am in receipt of your favor of the 25th inst. relative to the Act of August 25, 1864, P. L. 990, entitled "An Act to regulate elections by soldiers in actual military service." Yon ask to be advised:

1. Whether the present election, of 1917 is such a general election as is contemplated by the Act.

2. If so, whether it will be necessary for your Department to have the votes polled of the Pennsylvania troops not only for county officers, but also for local officers of the 'townships, such as constables, election officers, road supervisors, etc.

3. Does the law provide for the taking of the vote of certain Pennsylvania citizens in actual military service in Europe who may be enlisted in the Regular Army of the United States, but not enlisted in the Pennsylvania National Guard units or in the National Army created by selective conscription?

I shall take these up in their order.

1. At the time of the passage of the Act of August 25, 1864, the Constitution of 1838 was in force. That Constitution made no distinction between general and municipal elections. The Act was passed to carry into effect the amendment to Article III, which was adopted in 1864 as Section 4, as follows:

"Whenever any of the qualified electors of this Commonwealth shall be in actual military service, under a requisition from the President of the United States or by- the authority of this Commonwealth, such electors may exercise the right of suffrage in all elections by the citizens, under such regulations as are or shall be prescribed by law, as fully as if they were present at their usual places of election."

The Act of 1864, before referred to, provides in Section 1, inter alia, as follows:

"That whenever any of the qualified electors of this Commonwealth shall be in any actual military service, under a requisition from the President of the United States, or by the authority of this Commonwealth, and as such, absent from their place of residence, on the days appointed by law for holding the general or presidential elections within this State, or on the days for holding special elections, to fill vacancies, such electors shall be entitled, at such" times, to exercise the right of suffrage, as fully as if they were present at their usual places of elections, in the manner hereinafter prescribed," etc.

A reference to the election laws in force at the passage of the Act of 1864 shows that these laws recognized and made provision for Presidential or Electoral elections, which were held every four years in November, and were exclusively for the election of Presidential electors; general elections which were held in October, at which all State officers, Members of the Legislature, Congressmen, judges and county officers were elected; municipal and township elections which were held in the spring, and special elections to fill vacancies in offices regularly filled at the general election.

The word "general" was apparently used in the Act to distinguish the October or Fall elections from the Township or Spring elections, and the object of the Act of 1864 was apparently to permit the soldiers to vote for all offices to be filled at the Pall and Presidential elections.

As before pointed out, judges and county officers were elected at the general election,-and where therefore voted for by the soldiers in military service-They did not vote for township and municipal officers who were elected at the Spring election, as no provision was made for the taking of the Soldier Vote at such elections.

This was the status of the law when the Constitution of 1873 was framed, which adopted verbatim the Amendment of 1864 above quoted as Article VIII, Section 6.

The Constitution of 1873 made provision for general and municipal elections, the former of which were held in the fall and the latter in the spring. Again all judges and county officers were elected at the fall elections, while municipal and township officers were elected in the spring.

This provision continued until the adoption of the Amendments to the Constitution of 1909, when spring elections were abolished and provision was made that general elections should be held in even numbered years, and municipal elections in the odd numbered years and 'that all judges for the courts of the several districts, and all county officers, as well as city, ward, borough and township officers should be elected on the Municipal election day.

I do not think that there was any thought or intention in the adoption of this Amendment to take away from the Soldiers in military service the right to vote at the regular fall election for judges and county Officers. The Constitutional provision (Article VIII, Section 6) secures to the soldiers in actual military service, under a requisition from the President of the United States or by the authority of the Commonwealth, the right of suffrage in all elections, and the changes in the Constitution as to the holding of elections should not be extended so as to deprive soldiers of their votes for offices which they unquestionably possessed previously without the clearest warrant and language which admits of no other conclusion.

I am, therefore, of the opinion that the division by the Constitution of 1873 of elections into general and municipal and the Amendment of 1909 above referred to are not intended to take away this right and that the Act of 1864 does apply to the,election of 1917.

2. Considering your second question as to whether the vote of the men in military service should be taken for local officers of townships, such as constables, election officers, road supervisors, etc., as well as for county officers, the legal position is not so clear.

Under the Act of 1864, soldiers in actual service were given an opportunity of voting for these offices, because they were filled at the spring election at which there was no provision made for the taking of the Soldier Vote. Had the law provided for electing such officers at the fall election I have no doubt the right of the soldier to vote would have extended as well to such offices as to State and county offices.

The absence of the right of the soldier to vote for these offices was not in consequence of the denial of the right of such vote but for the want of machinery to take the vote at the spring election.

Having concluded that the Act of 1864 is operative as to the election of 1917, I see no reason why it should be restricted to judicial and county offices and should not extend to all offices to be filled at said election, except as specially provided in the Act.

Your are, however, confronted by a practical as well as a legal question in preparing the form of the ballot and furnishing the information to the soldiers, because there are approximately 7,000 election districts in the State, with an average of something like twenty candidates in each of the election, districts, and approximately 140,000 candidates for the various offices to be filled at the election this year throughout the State.

In furnishing information to the voters last year under the instructions of this Department, you had a pamphlet printed giving the names of all the candidates to be voted for in the respective counties and districts of the State.

The preparation of such a pamphlet with regard to the county officers is feasible, but in view of the vast number of candidates for the various townships and election districts, it may be difficult to print a pamphlet containing all of the nominees in each township or district.

The ballot, however can be so prepared as to permit each soldier to vote for the candidates in his own county and district. I would suggest, however, that the pamphlet furnished for the information of the soldier voters should not include the names of any candidates except those for county, city and judicial offices.

Permit me to call your attention, however, to the provisions of Section 41 of the Act of 1864, which provides that it shall not apply to the election of members of council, or to ward and division officers, in the City of Philadelphia.

In recapitulation of the foregoing, I am of the opinion that the soldiers should be given an opportunity to vote for township and municipal officers as well as county officers, but that it is impracticable for your Department to furnish ballots with the names of such township candidates printed thereon, or a pamphlet of information containing the names of the various township and district candidates.

3. Both the Constitution and the Act of 1864 refer only to qualified electors in actual military service "under a requisition from the President of the United States, or by the authority of this Commonwealth."

I am of the opinion that the Act of 1864 should not be construed . beyond the express language of the Constitution and the Act, and that the qualified electors in actual military service whose votes are to be taken, are limited to those who are in the military service under a requisition from the President of the United States, or by the authority of this Commonwealth. It doesn't apply and has never heretofore been construed to apply to soldiers who voluntarily enlisted in the Regular Army, and under present conditions should be limited to members of the National Guard who have been requisitioned into the service of the United States, or members of the National Army who have been selected under the conscription law.

This is in harmony with the precedent established during the Philippine Insurrection when the vote of the soldiers of the Pennsylvania organizations stationed in the Philippine Islands was taken, but not that of Pennsylvanians who were serving there as members of the Regular Army.

Yours very truly,

FRANCIS SHUNK BROWN, Attorney General.