Pennsylvania Advisory Opinions August 07, 1913: AGO 78

Advisory Opinion Text

VACANCIES-STATE SENATOR.

A special election to fill the unexpired term of Hon. Jacob C. Stineman, State Senator, should he held at the general election in 1914.

Hon. John M. Reynolds, President of the Senate, Harrisburg, Pa.

Sir: This Department is in receipt of your communication of August 5th, 1913, stating that vacancies now exist in the Thirty-fifth and Fourty-fourth senatorial districts of the Commonwealth, which vacancies occurred during the last session of the Senate in the following mariner, namely, in the Thirty-fifth district by the death, on April 2nd, 1913, of Hon. Jacob C. Stineman, elected to the office of State Senator at the November election, 1913, and in the Forty-fourth district by the resignation, on May 5th, 1913, of the Hon. A. W. Powell, elected to said office at the November election in the year 1910.

You further state in your communication that no writ was issued for an election to fill either of said vacancies, because at the time they occurred it was believed the Legislature might adjourn before an election could be held, arid return thereto made.

You ask to be advised whether you, as the presiding officer of the Senate, are "obliged by law to issue a writ at this time for an election to be held on the first Tuesday after the first Monday in November next," or whether it is discretionary with you "as to whether the writ shall issue for the election in November of this year, or for the general election in November, 1914, conceding, however, that if a special session of the Legislature in the meantime be called it would be my (your) duty to order an election in time for such session."

The disposition of your inquiry requires- an examination of the constitutional and legislative provisions applicable to the facts set forth in your request for an opinion.

By section 2 of Article 11 of the present Constitution it is provided that:

"Members of the General Assembly shall be chosen at the general election every second year. Their term of service shall begin on the first day of December next after their election. Whenever a vacancy shall occur in either house the presiding officer thereof shall issue a writ of election to fill such vacancy for the remainder of the term."

This provision with relation to the filling of vacancies occurring in either house (which vacancies may occur either during a session of the General Assembly, or during a recess taken with the consent of both houses, or during a recess following final adjournment) is practically identical with the similar provisions in the Constitution of 1790 and 1838.

By section 19 of Article 1 of the Constitution of 1790, it is provided that:

"When vacancies happen in either house the Speaker shall issue writs of election to fill such vacancies,"

and this identical provision appears as Section 20 of Article 1 of the Constitution of 1838.

None of the constitutions referred to provided any machinery for carrying the above quoted provisions into effect, but such machinery was provided by the Act of July 2, 1839, P. L. 519, entitled: "An Act relating to the elections in this Commonwealth," as supplemented by the Act of January 16, 1855, P. L. 1.

In considering and construing these acts it should be borne in mind that they were approved at a time when representatives were chosen annually, at a general election on the second Tuesday of October, and when one-third of the whole number of senators were chosen at each annual election, and when the General Assembly met in regular session on the first Tuesday of January each year.

An analysis of Sections 35, 36, 37, and 38 of said Act of 1839, as supplemented by said Act of 1856, discloses that the Legislative intent expressed in the legislation under consideration was to secure a full representation in both houses during sessions of the. General Assembly, by providing for the holding of special elections on special days, when necessary, to accomplish this purpose, and for the holding of special elections to fill unexpired terms at the time of the next general election succeeding the happening of a vacancy during a recess of the General Assembly. The time for holding the special election was dependent upon whether the General Assembly was in session when the vacancy occurred, or would be in session before the next general election. Hence, it was provided, in substance, that if the vacancy should happen in either house during a session of the General Assembly, or during a recess, but at a time when the members shall be required by the provisions of their own adjournment, or by the Governor, to meet at a date prior to the next general election, the Speaker issuing the writ should appoint a time as early as may be convenient, not exceeding thirty days after the date of the writ for holding such election.

It was further provided that if the return of such election could not be made before the time appointed for a final adjournment the writ should not be issued, or if issued, should in the case of a vacancy in the House of Representatives be countermanded, and in case of a vacancy in tie Senate should, by another writ, be extended until the next general election.

It was also enacted that if a writ should be issued by the Speaker of the Senate during a general recess of the Legislature he should direct the special election to be held at the time appointed for holding general elections. As the members of the House were then elected annually there was no occasion for a special election to fill a vacancy in the House of Representatives, unless such vacancy occurred at a time when an election could be held and return made during either an existing session, or a session provided for by the terms of a previous adjournment, or a special session called by the. Governor.

In the case of a vacancy in the Senate, however, it was provided that when the writ should be issued during the recess of the Legislature it should direct the special election to be held at the time appointed for holding the general election. Provision was also made for the contingency of a special session called after the issuing of such writ by enacting that, if, after a writ for a special election to take place on the day of the general election has been issued, the Governor shall issue his proclamation for convening the Legislature, the Sheriff to whom such writ shall be directed shall give notice of an election to be held within thirty days after the date of such proclamation.

The machinery thus provided was evidently designed to meet every contingency which might arise in connection with the holding of a special election to fill a vacancy in the office of State Senator.

The general principles deducible from this legislation are:

First: If the vacancy occurs during a session of the Senate (or during an adjournment of both houses to reconvene at a fixed time, or at a time when a proclamation for a special session has been issued) and it will be possible to hold a special election and have a return thereto made, before the time appointed for the final adjournment of the General Assembly, the writ should be issued appointing a time for such election as early as may be convenient, not exceeding thirty days after the date of the issuing of the writ.

Second: If the vacancy occurs during a general recess of the General Assembly (or at a time when an election cannot be held and return thereto made prior to the time fixed for final adjournment), the writ should provide for the holding of the special election at the time appointed for holding the next general election.

The vacancies referred to in your communication happened during a session of the General Assembly, but as no writ was issued by you prior to the final adjournment of that body, they are now vacancies existing during a general recess of the General Assembly, and in my opinion are, under the circumstances in this case, to be considered for every practical purpose as vacancies occurring during a general recess.

The material provision of the said act of 1839 applicable to the present case is as follows:

"If any writ shall be issued by the Speaker of the Senate during the recess of the Legislature, he shall, except as is hereinafter provided, direct the election to be held at the time appointed for holding the general election."

As above stated, at the time this provision was enacted the "time appointed for holding the general election" was the second Tuesday of October in each year. By Article VIII, Section 2 of the Constitution of 1874 this time was changed to the Tuesday next following the first Monday in November in each year, and by the amendment to this Article and section, adopted in 1909, the general election is to be held biennially on the Tuesday next following the first Monday of November in each even numbered year.

The office of State Senator is, under the election laws of this Commonwealth, a State office. The general purport of the various amendments to the Constitution, adopted in 1909, is, as expressed in the amendments to Article VIII, Section 3, and Article XII, Section 1, that:

"Elections of State officers shall be held on a general election day and 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."

There are no circumstances now existing requiring a special election in either case at the municipal election in November, 1913.

In my opinion, therefore, the said acts of 1839 and 1855 should now be construed as providing for a special election to fill the unexpired term of the Hon. Jacob C. Stineman, as State Senator from the Thirty-fifth Senatorial District, to be held at the time of holding the general election on the Tuesday next following the first Monday in November, in the year 1914, and you are accordingly advised to issue the necessary writ for such election at an appropriate time.

As under section 3 of Article 11 of the present Constitution, Senators are elected for the term of four years, and as the Hon. A. W. Powell, who has resigned as State Senator from the Thirty-fourth Senatorial District, was elected in November, 1910, no special election will, in the ordinary course of events, be necessary to fill the vacancy now existing in this district because the general election in November, 1914, will be the regular time for electing a Senator from said district.

In the remote contingency that the Governor should, under Section 12 of Article IV of the Constitution, convene the General Assembly in a special session by reason of some extraordinary occasion, the other existing provisions of the above mentioned Acts of 1839 and 1856 will become applicable, and the said vacancies will then become vacancies existing at a time when the members of the General Assembly are required by the Governor to convene in special session, in which event you should issue writs for special elections to fill both of said vacancies, said elections to be held within thirty days after the dates of the respective writs.

In the absence, however, of a proclamation for a special session, you are advised that but one writ should be issued, namely, a writ for a special election to fill the vacancy in said Thirty-fifth Senatorial District for the unexpired term, which special election should be held at the time of holding the regular general election in November, 1914.

Very truly yours,

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