259 Pa. 176 | Pa. | 1917
Opinion by
By the Act of May 19, 1874, P. L. 206, the Orphans’ Courts-of the State are made courts of record. Under-Section,25. of Article V of the Constitution, “any vacancy happening by death, resignation or otherwise, in any court of record, shall be filled by appointment by the Governor,’to continue till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.” This provision remains unchanged, and, but for certain amendments' to-others.-in, the .Constitution, it could not be questioned that the successor of Judge Dallett — who died August 23, 1917, — would, be an appointee of the'Governor, to serve until the first Monday-of January after the general election in 1918, when a successor- would be elected by the electors of the county.
Section 2, Article VIII, of the Constitution, as origi
The February election has been abolished, and there is now but one election each year, held on the Tuesday following the first Monday of November. The general election is biennial in each even-numbered year; the municipal, on the same day in odd-numbered years. The first question to be considered is, at which of these elections are Orphans’ Court judges elected?
By the amendments of 1909 it was intended to get rid of the spring election and to continue the constitutional provision for the election of local or municipal officers on a day different from that on which general State of4 ficers are elected. While judges of the several judicial
The second question for determination is, Shall Judge Dallett’s successor be elected this year or in 1919? As already observed, Section 25 of Article V of the Constitution has never been changed. It remains just as it was originally adopted. It is a section of “The Judiciary” article, and specifically provides that any vacancy happening by death in any court of record shall be filled by appointment by the Governor, “to continue till the first Monday of January next succeeding the first general election, which shall occur three or more months after the happening of such vacancy.” This means that if the vacancy happens within three months preceding the next election at which judges are elected, the appointee shall hold his office until the first Monday of January following the second election for judges held after the death which caused the vacancy. By Section 8, Article IV, of the Constitution, known as “The Executive” article, it is provided that the Governor shall fill, by appointment, vacancies in certain offices, including “a judicial office”; and a further provision is that “in any such case of vacancy, in an elective office, a person shall be chosen to sai.d office at the next general election, unless the vacancy shall happen within three calendar months immediately preceding such election, in which case the election for said office shall be held at the second succeeding general election.”. This provision was entirely consistent with Section 25 of Article V. Has that section been made inoperative by the amendment of 1909, amending Section 8 of Article IV ? That section, as amended, declares that, in case of vacancy in an elective office, the person appointed by the Governor
The amendment of Section S, Article IV, of the Constitution, does not purport to be a new provision. It recites the original section, and the meaning now to be given to the words, “in a judicial office,” is the same as if the section had not been amended. This is conceded by learned counsel for appellees, who also frankly admits that “It necessarily follows that when Article IY, Section 8, was amended, and the words in a judicial office remained unchanged, they cannot be given such an enlarged meaning as to render Article V, Section 25, wholly nugatory; and hence now, as before the amendment, Article Y, Section 25, governs and the vacancy caused by the death of Judge Dadlett is not to be filled at the present time.”
And now, October 15, 1917, the decree of the court below is reversed, the bill is reinstated, and it is ordered, adjudged and decreed that the defendants, and each of them, be perpetually enjoined and restrained from printing upon the official ballot for the election to be held November 6,1917, any name or names whatsoever of persons nominated for the office of judge of the Orphans’ Court of Philadelphia County, other than those nominated at the primary held September 19, 1917, to fill the vacancies caused by the expiration of the terms of office of the Honorable Joseph F. Lamorelle and Honorable Edward A. Anderson, the costs below and on this appeal to be paid by the County of Philadelphia.