Pennsylvania Advisory Opinions August 23, 1916: AGO 87

Advisory Opinion Text

OFFICE OF THE ATTORNEY GENERAL,

Hon. Martin G. Brumbaugh, Governor of Pennsylvania, Harrisburg, Penna.

" Sir: I am in receipt of your letter of the 3rd inst. asking substantially how to proceed to record the votes of electors of this Commonwealth in actual military service, under requisition of the President of the United States or by the authority of this Commonwealth, and absent from their place of residence on election day. You also inquire, whether the Act of August 25, 1864, P. L. 990 is in force and if so what duties it imposes on you; what compensation the commissioners therein provided for, receive, and from what fund should payment be made. Pursuant to your suggestion, that our registration and other election laws be examined in order to secure to Pennsylvania soldiers the right to vote, this Department has considered the subject in all its phases and I have caused to be prepared a resume of the constitutional and statutory law covering the entire subject. This resume shows in detail what soldiers are entitled to vote, and what qualifications are necessary, the appointment, duties, and compensation of the commissioners and from what fund payment should be made. It specifies your duties as well as those of the Secretary of the -Commonwealth. It sets forth in an orderly way all the steps to be taken in the conduct of the election and indicates the method whereby detached soldiers may cast their ballots and have them counted. It contains all the forms necessary to effectuate the purpose of the act and I have also inserted certain recommendations which Will aid the soldier in preparing his ballot as well as expedite the election officers in the performance of their duties. I have also 'discussed therein the several legal questions which have arisen and have indicated the proper course to be pursued in each case.

It seems unnecessary to repeat at length the contents of the accompanying resume, I desire to call your attention, however, to several matters of special interest, all of which are therein fully discussed.

The Act of August 25, 1864, P. L. 990 was passed pursuant to the Constitutional Amendment of 1864, which amendment was incorporated verbatim in the present constitution. The constitutionality of this statue has never been questioned. It has successfully been!; invoked during the Civil War, the Spanish American War, and the Anthracite Coal Strike in 1902, and you are advised, that its pro-' visions are now in force with the exception of a part of Section 40 relative to the payment of the soldiers' tax and which will be later herein more fully discussed.

Two interesting questions arise as to the qualifications of voters.

First. Whether the laws requiring personal registration in first, second and third class cities, applies to elections held by soldiers in the field and

Second. What taxes must be paid by the soldiers in order to i qualify them for voting purposes and by whom must payment be made.

Without repeating in detail, my reasons which you will find at' length in the accompanying resume, I am of the opinion and you are now so advised, that the personal registration acts do not apply to elections held by soldiers in the field and absent from their places of residence. A contrary construction would operate to disfranchise! every soldier absent from his residence and impute to the legislature: an intention which the language of the registration acts, themselves, does not justify.

As to what taxes the soldier must pay in order to vote and by whom payment must be made, your attention is directed to Section 40 of the Act of 1864, which provides in effect that all private and non-commissioned officers may pay to the collector or county treasurer, a tax of ten cents and that they shall be exempt from all other poll or occupation taxes during their continuance in the service. Commissioned officers must pay the usual personal taxes. The section also provides payment may be made by any citizen of the election district of the soldier, whose taxes such citizen undertakes to pay The Act of July 15, 1897, P. L. 276, makes it unlawful for any person to pay any occupation or poll tax assessed against any elector, without a written order signed by such elector. As stated in the resume,, 1 am of the opinion and you are now advised that so much of the Act of 1864 as authorizes the payment of the poll or occupation tax without such written and signed order, is repealed by the said Act of 1897. This construction does not operate to disfranchise – the soldier. He may still sign an order authorizing some person at home to pay his taxes or he may send his taxes direct to the county treasurer or as stated in the contested election case of William H. Thomas, reported in 6 Lackawanna Legal News, G27, the soldier's wife may pay the taxes out of money belonging to her husband. The form of an order for payment of the soldiers' taxes has been prepared by this Department and has been furnished to the Secretary of the Commonwealth so that he may have a sufficient number printed and distributed among the soldiers in ample time to accomplish their purpose.

I have also suggested to the Adjutant General, that he cause the soldiers to be, at once, notified of their right to vote at the coming election, and to suggest that each soldier, desiring to exercise such right, should communicate with some one at his place of residence to» see that he is properly assessed at least two-mouths before election as required by law. I am informed that the notice is in the course of transmission to the soldiers.

Your duty, relative to the. appointment of the commissioners, is clear. The act provides you are to appoint a sufficient number, not exceeding one, to each regiment, as you deem necessary to accomplish the purpose of the act. The number necessary should be based on the number of military organizations in actual service in the field, as well as, at places of rendezvous within the State, and the proximity of such organizations to one another. These are facts which you may obtain from the Adjutant General. The resume shows what organizations are now in the field or at rendezvous, .their number and location may be materially changed when you desire to make the appointments. I have stated in the resume, that there are several organizations in actual service not constituting a part of a regiment and I am Of. the opinion and you are now advised, that a commissioner may be appointed for each of these independent organizations as well as for each "regiment." The resume will show in detail, all the duties which are imposed on you in relation to the commissioners as well as your duty generally.

The commissioners receive no compensation for their services, but are allowed ten cents per mile in going to and returning from the places assigned to them. You are now advised that for the reasons appearing at length in the resume, the act of August 25, 1864, P. L. 990, itself, operates to appropriate the money necessary to pay this .expense and that the commissioners are not required to wait for reimbursement until the next session of the legislature.

In order that no soldier, who is qualified and desires to vote, may be mistaken as to the officers to be filled and the names of the candidates, the Secretary of the Commonwealth is preparing for distribution a pamphlet which will contain the names of all persons designated as presidential electors, as well as all elected candidates for the several officers to be filled. These names will be arranged by districts where necessary, and after each district will be designated, the territory limits included therein. In the case of legislative districts, the pamphlets will also show how many representatives each district may elect.

The Secretary of the Commonwealth is also preparing the form of a ballot which will be printed and distributed by him in sufficient numbers to be accessible to any soldier desiring to vote.

As before stated, all the phases of the subject have been covered in a detailed and orderly way in the accompanying resume, and if the provisions and recommendations, therein, contained are followed, every elector from this State in the actual military service in the field or at rendezvous will be given an opportunity to cast his ballot and have it duly recorded.

Faithfully yours,

FRANCIS SHUNK BROWN, Attorney General.