— The matter comes before the court on a writ of alternative mandamus seeking to compel the County Commissioners of Lackawanna County, acting as a county board of election, to receive a nomination petition tendered to them by Ray C. Snyder, a candidate for the Republican nomination for the office
It appears from the evidence that on the last day for filing nominating petitions one A. W. Singer, a police officer of the Borough of Clarks Summit, went to the office of the county commissioners about 3:30 p.m., one-half hour before the usual time for closing the offices, at which time the statutory time for filing petitions would expire. He had with him five petitions for various offices in the Borough of Clarks Summit, including the petition of Ray C. Snyder. Singer testified that the clerk, who was receiving petitions, refused to take the petition for the nomination of Snyder because it was not accompanied by a post office money order or a certified check for the sum of $20, the fee required by the Pennsylvania Election Code of June 3, 1937, P. L. 1333, to be paid for filing petitions. Singer then told the clerk that “Money had been sent down to take care of that,” but when told that only a money order or certified check would be accepted Singer made no further attempt to file the papers, either under protest or otherwise, and did nothing except telephone to Snyder’s home in Clarks Summit for further instructions. When asked what money had been sent down or who had it, he replied that he had the money, but when questioned further as to how much money he had he said that he thought he had $15 or $18 which had been given to him by a man named Miller in Clarks Summit to take care of all the petitions. His explanation of his failure to do anything further or to tender the required fee in cash is that, having been told that money would not be received, he thought it was no use. The only other testi
Regardless of the question as to whether the tender of money in lieu of a post office money order or a certified cheek would entitle petitioner to have his petition received and his name placed upon the ballot, the fact remains that, under the testimony, no tender in any shape of the specific amount required by the act was made, and this fact alone would seem to bar petitioner from the relief sought in these proceedings. The witness Singer sought to excuse himself from making further offer on the ground that the clerk had notified him that money would not be received, but it is difficult to see how a tender of $20 could be made from $15 or $18 in his pocket, nor was there anything to prevent petitioner, or his agent, from making formal tender to the county election board itself, rather than to a clerk. We cannot substitute what an individual might have done for what actually took place.
In the petition for the writ of alternative mandamus, petitioner likewise raised the point that no filing fee was necessary to be paid since in fact the Borough of Clarks Summit makes no appropriation for any salary for its burgess, and, under the Pennsylvania Election Code, candidates to offices to which no compensation is attached are exempt from the payment of a filing fee, but it is believed that this position is untenable. The General Borough Act of May 4,1927, P. L. 519, sec. 1023, authorizes
Now, August 20, 1987, the petition for writ of alternative mandamus filed in the above-entitled case is dismissed; costs to be paid by petitioner.