Erb v. Commonwealth ex rel. Morley

91 Pa. 212 | Pa. | 1879

Mr. Justice Mercur.

delivered the opinion of the court,

This contention is between persons each claiming to be the successor of McFadden as alderman of the Sixth ward of the city of Harrisburg. He was duly elected in October 1878, and had been commissioned for five years from the 7th of November following. He was therefore holding the office when the constitution of 1874 w-ent into operation. The twenty-sixth section of the schedule declares “ all persons in office in this Commonwealth at the time of the adoption of this constitution, and at the first election under it, shall hold their respective offices until the term for which they have been elected or appointed shall expire, and until their successors shall be duly qualified, unless.otherwise provided in this constitution.” There was no provision therein shortening the term of aldermen then in office. The term for which McFadden had been elected did not expire until November 1878. His right to. hold the office continued not only until that time; but also until his successor was duly qualified.

Art. 3, sect. 13 of the constitution declares that no law shall extend the term of any public officer after his election or appointment ; but this does not make inoperative the sixth section of the schedule. No power was given to the legislature to abridge the term for which McFadden had been elected, yet by its failure to provide that his successor should be elected and qualified at the expiration of that term, it was thereby extended by virtue of the constitution.

Art. 8, sect. 3 of the constitution declares that all elections for city, ward, borough and township officers for regular terms of service, shall be held on the third Tuesday of February. Recognising this constitutional provision the Act of 22d March 1877, Pamph. L. 12, was passed. Two main purposes are therein expressed; one to designate the time when the term of office of those thus elected should commence; the other that it should not be very lorig after the election. Hence the 1st section declares that aldermen or justices of the peace thus elected, whose term of office under existing laws expire prior to the first Monday of May, shall continue in office from the date at which said term would otherwise expire, until the first Monday of May next ensuing thereto. The second section makes it the duty of the constable of the proper ward, district, borough or township to give at least twenty days •notice preceding the election to be held in February of each year of the expiration of the term of the commission of any alderman or justice of the peace that may expire on or before the first Monday of May following. Section four declares the governor shall issue commissions to each person so elected alderman or justice of the peace, for the term of five years, to be computed from the first Monday in May succeeding the election.

Thus it appears the constable is authorized to give notice of an election under this act, to be held in February, in those cases only where the commission of the alderman or justice of the peace expires on or before the first Monday of May following. As McFadden’s term did not expire as soon as May 1878, it follows that the notice could not be given for the election of his successsor in February previous. Still further, when an alderman or justice of the peace is duly elected the act requires the governor to commission him for five years from the first Monday of May succeeding his election. As MoFadden’s term confessedly continued long after May 1878, it is manifest that the governor could not issue a commission to a successor for a term to be computed from that time.

It therefore follows that the clear intent of the act was to declare that McFadden should hold the office until the first Monday of May 1879, and the election of his successor should be held in February previous.

This conclusion is not in conflict with the rulings in Brooke v. ( Commonwealth ex rel. Jenkins, 5 Norris 168, but so far as they are applicable, in entire harmony therewith.

Neither the election held in February 1878, under which Erb claims, nor the commission to him professing to take effect from the 7th of November following, was authorized by law. The learned judge was therefore entirely correct in entering judgment in favor of the relator on the demurrer.

Judgment affirmed.