44 A.2d 55 | Pa. | 1945
Lead Opinion
These two appeals are from decrees dismissing bills in equity in two suits against the Secretary of the Commonwealth, one brought by A. Marshall Thompson, the other by John Morgan Davis. The cases were heard together. Each plaintiff avers that he is the candidate of the Democratic party for the office of Judge of the Superior Court; that the defendant Secretary accepted and filed nomination papers tendered to him by the "American Labor Party, a political body, to the end that the names of the said W. Heber Dithrich and John C. Arnold should appear on the ballot or ballot labels at the municipal election to be held November 6, 1945, as the nominees of the said American Labor Party for the said office of Judge of the Superior Court . . ." Each plaintiff alleges that these nomination papers "were defective and not in conformity with the requirements of Section 951 of the Pennsylvania Election Code of 1937, *618 in that the candidate's affidavit appended to each nomination paper did not state that the said candidate's name had not been presented as a candidate by nomination papers for the said office to be voted for at the ensuing primary election but, to the contrary, stated that the said candidate's name had been presented as a candidate by nomination petitions for the same office to be voted for at the ensuing primary election. Plaintiff is informed and therefore avers that this deviation from the form of affidavit required by the Pennsylvania Election Code and prescribed by the Secretary of the Commonwealth was effected by the deletion of the word 'not' from the candidate's affidavit as printed on the prescribed form of nomination paper."
Each plaintiff prayed for an injunction restraining the Secretary from ". . . certifying the names of [Judges Dithrich and Arnold] as the nominees of the American Labor Party for the office of Judge of the Superior Court at the general election to be held November 6, 1945."
Defendant filed preliminary objections challenging the sufficiency of the bills. At the argument of these objections, answers on the merits were also filed at the suggestion of the court, in order that prompt disposition might be made as on final hearing.
With respect to the averment (quoted above) complaining of the inadequacy of the affidavit, the Secretary answered, inter alia, "Defendant admits the said affidavits stated that the candidates' names had been presented as candidates by nomination petitions for the same offices. Defendant denies, however, that this is a deviation from the form of affidavit required by the Pennsylvania Election Code and prescribed by the Secretary of the Commonwealth, for the reason that said form of affidavit so required and prescribed was designed to apply to nomination papers filed in behalf of those seeking nomination to offices other than the office of a judge of a court of record. Defendant further avers *619 that rather than have separately printed nomination papers to be used only by candidates for the office of judge of a court of record, the form of affidavit was prescribed by him so that it would cover all offices; and, in the event nomination papers were filed in behalf of a candidate for the office of a judge of a court of record, which candidate was also filing nomination papers or petitions of other political bodies or parties for the same office, appropriate changes in said affidavit could be made to fit that situation. Defendant further avers that such form of nomination papers and affidavits are commonly used for the nomination of individuals for divers offices, including that of a judge of a court of record; and, in such event, a candidate for an office other than that of a judge of a court of record would have to swear that his name had not been presented as a candidate by other nomination petitions or papers for the same office, whereas, a candidate for judge of a court of record who was a candidate on more than one ticket, since he is permitted by the Pennsylvania Election Code to run for such office on more than one ticket, would necessarily not be able to swear to the same affidavit without swearing to a false oath."
The cases were heard by the three judges of the court, sitting in banc; the bills were dismissed on August 24th; appeals were taken promptly and were argued in this Court on August 31st. As prompt decision was required in order that the ballots might be printed in time, orders were filed September 1st affirming the decrees appealed from. This opinion is now filed for the purpose of stating the reasons for our agreement with the learned court below.
The issue made by the quoted pleadings may be simply but substantially stated to be that plaintiff averred that the nomination papers were void because the candidates did not swear that they were not also candidates on another party ticket. They could not make such an affidavit because, in fact, they were candidates on *620 the Republican party ticket. Defendant relies on the provision of the election law which permits candidates for judge of a court of record to run on more than one party ticket, and asserts that Judges Dithrich and Arnold had the right to accept nomination on behalf of the American Labor Party and were therefore bound to state their plural candidacy in the affidavits.
The election law creates two classes of candidates. One class is composed of those who may not be candidates on more than one party ticket; the other is composed of candidates seeking election to the office of judge of a court of record. That classification meets the constitutional test of reasonableness. The people themselves have placed judges in a separate class: Constitution, Art. VIII, Sec. 3. One purpose of allowing those seeking judicial office to be candidates of more than one party ticket was to provide for the nonpartisan selection of judges.
In their brief, appellants present these four contentions: (1) "the papers . . . are not nomination papers as defined by law;" (2) there was "no right to file papers which are irregular and void on their face"; (3) the statute required the Secretary to reject defective papers; (4) equity has jurisdiction to require him to do so.
Agreeing with appellants' second and third contentions that there was no right to file papers "void on their face," and that the Secretary should reject such papers, we come to the other two contentions and shall first deal with the assertion that the papers "are not nomination papers as defined by law."
Appellants' argument is that while the papers, in form, are nomination papers, they are not so in fact because (1) section 951 of the Election Code provides for an affidavit stating, among other facts, that the candidate's name has not been presented as a candidate by nomination petitions for the same office, and (2) that affiants have not stated that to be the fact. Each affiant, on the contrary, states that his name had been presented *621
by nomination petition. The question is whether the contents of these affidavits in judicial nomination papers prevent their being nomination papers within the statute. Under the existing election law, voters, acting as a political body, may bring into existence a new political party, entitled to a place on the ballot, by a process which begins with their filing nomination papers on behalf of that political body, designating its candidates. The political body, known as the American Labor Party, desiring to nominate Judges Dithrich and Arnold as the candidates of that party, caused these nomination papers to be filed. As the offices to be filled were judicial, the candidates were in the second of the two classes, expressly authorized by the code to become the candidates of more than one political party. It was the duty of the Secretary to recognize their right to plural candidacy and to prepare such papers as the classification required. Section 201 (a), 25 PS section 2621, provides that the Secretary shall "determine, in accordance with the provisions of this act, the forms of nomination petitions and papers, expense accounts and all other forms and records, the form of which he is required to determine under the provisions of this act." Section 951, 25 PS section 2911, provides that nomination papers by political bodies "shall be in form prescribed by the Secretary of the Commonwealth, and no other forms than the ones so prescribed shall be used. . ." He could of course have provided separate forms for each of the two classes of candidates, one to be used by candidates for judicial office, and the other for candidates of the other class; instead, he appears to have provided a general form for both which might require adaptation, by the insertion or deletion of words, sufficient to meet the necessities of the class involved. It was apparently in accord with this view of his duty that he stated, in his answer to the bill, the practice of his office with respect to the forms of papers as quoted above. The provision in section 951, 25 PS section 2911, that a candidate's affidavit shall include *622
a statement that "his name has not been presented as a candidate by nomination petitions for the same office to be voted for at the ensuing primary election nor has he been nominated by any other nomination papers filed for the same office" must be read in the light of the legislative classification of candidates. It must be confined to the class to which it is applicable. It applies only to candidates of the class who are not candidates for judicial office. Not only does this construction seem to be clear, but the interpretation suggested by plaintiffs would, by implication, nullify the nonpartisan purposes sought to be accomplished by the express provision that judicial candidates may be on more than one party ballot. The interpretation cannot be restricted to a construction that would deprive voters who are members of a political body desiring to nominate judicial candidates, of the right to nominate one who was already a candidate of some other party, because such discrimination against the voters who are members of that party would not only be unreasonable, but might render the provision, if so interpreted, unconstitutional: see opinions filed in Independence Party Nomination,
Having concluded that plaintiffs have not shown the nomination papers to be void for want of adequate affidavits, we might leave the case. But as plaintiffs have attempted to justify their right to disregard the remedy provided by section 977,
Equity has no jurisdiction in these cases. It is the duty of the legislature by appropriate legislation to provide regulations for elections to public office: Patterson v.Barlow,
Section 976, as amended,
Section 977, as amended,
No objections were filed; the result, in the words of the statute, is that the "papers . . . shall be deemed to be valid." We need not discuss at length the right to proceed in equity to set aside these nomination papers, because the subject was considered in Kane v. Morrison,
For these reasons the decrees were affirmed.
Dissenting Opinion
The majority base the decision of the instant appeals on two grounds, viz., (1) that the respective affidavits of the candidates for nomination for the Superior Court on papers filed by the American Labor Party supply the requirements of the law in such regard, and (2) that equity is without jurisdiction of the controversy. I respectfully dissent as to both particulars. *625
In passing, one may perhaps be permitted to wonder whether this Court's decision on the merits of the first of the above propositions does not automatically deny the validity of the second. Ordinarily a court without jurisdiction of subject-matter is without authority to make any decision of substance in the cause. In any event, if there be no equitable jurisdiction of these cases, I think it is particularly unfortunate that a decision of the main question, as to the legal sufficiency of the affidavits required of judicial candidates for nomination by political bodies, was not left to an occasion when it can be raised in the manner and within the time which this Court now holds to be controlling. At its best, the present decision will constitute an open invitation to any candidate for judicial office to bring to his aid as many different nominating groups (i.e. political bodies) as he can supply with respective requisite signatures and a variety of supposedly inviting labels for them. The result will be a cluttering up of the election ballot for no better purpose than to multiply the number of times the particular candidate's name may appear thereon at the ensuing general or municipal election. Such a situation could proceed even to the point of threatening the availability of voting machines for use at an election. Assailants appear not to be lacking if there be a prospect of raising an obstacle. Cf. Davidowitz v. PhiladelphiaCounty,
On the question of merit, I think that the affidavits of the candidates for nomination for judicial office on the papers filed by the American Labor Party are in open defiance of the requirements of the pertinent statutory provisions and that the Secretary of the Commonwealth violated his sworn legal duty when he permitted them to be filed.
The learned court below disposed of these cases exclusively on the ground that equity was without jurisdiction and expressly left undetermined whether the affidavits in question were a valid compliance with the *626 express requirements of the law pertinent to the circumstances. With the greatest respect for the views of my brethren, I think that, on that question, the majority opinion falls into error by failing to recognize and abide by the distinction which the legislature deliberately drew between nominationpetitions of political parties and nomination papers of political bodies and that, as a result, this Court mistakenly reads into the applicable provisions of the Election Code (Secs. 951 and 976, in particular) matter which is not there and which, purposely, was not intended to be there.
The Election Code plainly reveals the intended difference between nominations by political parties and nominations by political bodies with a meticulousness rarely surpassed in legislative draftsmanship. Compare, for example, the contiguous clauses (d) and (e) of Sec. 976 (Act of June 3, 1937, P. L. 1333, Art. IX,
Clause (f) of Sec. 910 of the Election Code (
These pointedly differing statutory requirements with respect to candidate affidavits for nomination by politicalparties on petitions and by political bodies on papers, as above pointed out, were not mere inadvertent inconsistencies. They represent a clear expression of deliberate legislative intent as is still further confirmed by Sec. 976. That section expressly lays upon the Secretary of the Commonwealth the duty of examining any nomination petition, certificate or paper presented in his office for filing and immediately thereupon directs that, —
"No nomination petition, nomination paper or nomination certificate shall be permitted to be filed if — . . . (d) in the case of nomination petitions, if nomination petitions have been filed for printing the name of the same person for the same office, except the office of judge of a court of record, upon the official ballot of *628 more than one political party; or (e) in the case of nominationpapers, if the candidate named therein has filed a nominationpetition for the same office for the ensuing primary, or has been nominated for the same office by nomination papers previously filed; . . .". (Emphasis supplied). The intended differentiation could hardly have been made more obviously apparent; nor the Secretary's legal duty, clearer.
There is, of course, ample justification for the legislature's permitting a candidate for judicial office to seek nomination on petitions filed in the primaries of any number of political parties. But, there is equally as much justification for the legislature's refusing a candidate for judicial office the privilege of multiplying his nominations by resorting to nomination papers filed by political bodies. It is unnecessary here to detail the reasons justifying the differentiation. It should be sufficient for present purposes that the legislature did make the distinction in terms which seem plain beyond possibility of misinterpretation. Nor does the distinction, thus legislatively made, discriminate against any one. It will hardly be disputed that, for all offices except judicial, political bodies may not file nomination papers for the nomination of candidates who are seeking nomination for the same office by a political party or who have been nominated for the same office on papers by another political body. Yet, I have never heard it suggested that the so-called Party-Raiding Act (now incorporated in the Election Code) is unconstitutionally discriminatory. Nor am I able to see any unconstitutional deprivation of one's right to stand for public office because of the denial to any group or political party of the privilege of nominating a candidate who has acted to have his name otherwise appear on a primary ballot.
In the case of the affidavits of the respective candidates for nomination for judicial office by the political body here involved, each candidate swore (and of course *629 quite truthfully) that he was a candidate for nomination by a political party for the same office. That affidavit was a manifest non-compliance with the requirement of clause (5), paragraph (e) of Sec. 951 which deals with the affidavit required of a candidate seeking nomination on nominationpapers (candidates for judicial office notably not being excluded in such instance). Consequently, the Secretary of the Commonwealth by accepting and filing the American Labor Party nomination papers, with their deliberate non-complying candidate affidavits, violated his positive duty imposed by Sec. 976 which, as already appears, directs (without regard for the office sought) that "No nomination paper . . . shall be permitted to be filed if . . . the candidate named therein has filed a nomination petition for the same office for the ensuing primary. . .". Thus, the candidates' affidavits (not being amendable in the unalterable factual situation) were not only fatally defective because they were directly contrary to the statutory requirement in the premises but the Secretary of the Commonwealth, moreover, accepted for filing and accredited what the statute specifically directs shall not be permitted to be filed.
That action constituted an unlawful act. In Commonwealth v.Antico, supra, the Superior Court said (pp. 302-303) that "The Election Code of 1937 prescribed the procedure that must be followed by a political body to get its candidates on the ballot for a general or regular election. . . . The illegal procurement of a place on the ballot for the candidates of a political body, by violating the provisions of the Election Code, is an unlawful act, which interferes with a free and fair election, (Winston v. Moore,
If the action of the Secretary of the Commonwealth in respect of the nomination papers in question was violative of his bounden legal duty (as I believe it patently was), was the violation cognizable only at law on objections filed within the seven-day period as allowed by Sec. 977 of the Election Code? I do not think so.
Equity has jurisdiction to restrain the commission of acts contrary to law. The exertion of equity's power in such regard is not limited merely to cases where property rights are involved. The jurisdiction has been, and may be, exercised where a lack of redress otherwise, under the circumstances, threatens the public interest and welfare. And, we have it on the authority of Commonwealth v. Antico, supra, that "The illegal procurement of a place on the ballot for the candidates of a political body, by violating the provisions of the Election Code, is an unlawful act. . .". The Secretary's action in making possible the illegal procurement of a place on the ballot for the candidates of the American Labor Party was no less.
Thus, equity's jurisdiction to restrain or prevent the commission of an act contrary to law may be exercised where the acts complained of consist of violations of the election laws. In Kearns v. Howley,
In Lamb's Nomination Petition,
Just recently, in Koch Election Contest Case,
It seems to me that equity's jurisdiction to prevent or restrain acts contrary to law, such as are here complained of, is not open to doubt and that the only question in regard to an exercise of such jurisdiction is whether the equitable remedy has been abated or suspended by the interposition of a legal remedy. If it has been, then equity will refrain from exercising its jurisdiction. But, the legal remedy must befull, adequate and complete before it can serve to oust equity's jurisdiction. With this view, the learned court below seems to be in agreement. That court said early in its opinion that "In approaching this case we recognize that the legal remedy must be adequate in order to oust jurisdiction in equity." Where the learned court below went wrong, in my opinion, was in concluding that the remedy by objections filed to nomination petitions or *633 papers within seven days after the last day for filing the petitions or papers, as provided by Sec. 977 of the Election Code, afforded the plaintiffs a legal remedy of required adequacy. With that, I cannot agree.
Aside from conferring the right to file objections to nomination petitions and papers, all Sec. 977 does is to clothe such petitions and papers with a conclusive presumption of validity if objections thereto are not filed within the time specified. That provision may be considered so to render conclusive all matter intrinsic to such petitions and papers, — the object of attack. But, I cannot believe that the legislature thereby intended to or did provide for the legally presumed validity of an obviously illegal official act outside of the petitions or papers. The illegal act basic to these cases was the Secretary's accepting and accrediting for filing what the law expressly says shall not be permitted to be filed. His action in such regard was wholly extrinsic to the papers. They (the papers) enter the case only for evidentiary purposes upon a determination whether the Secretary failed to discharge his duty when he allowed a nomination paper to be filed in a form which the law directs he shall not permit to be filed. The provision for filing objections, as contained in Sec. 977, does not embrace a proceeding for restraining the Secretary of the Commonwealth from committing an act contrary to law. Nor is such a remedy at law elsewhere provided. Consequently equity's jurisdiction was not thereby ousted. It continues to afford not only the full and complete remedy but actually the only remedy.
It may be suggested that Sec. 977 provides, inter alia, for the filing of objections relating "to material errors or defects apparent on the face of the nomination petition or paper, or on the face of the accompanying or appended affidavits" and that, therefore, the invalid affidavits could have been questioned by the filing of objections to the papers. But, that provision contemplates objections to such apparent material errors or defects *634 as are amendable. The provision itself plainly so implies. There is no duty under Sec. 977 to question by objection an error or defect in a nomination petition or paper which is admittedly unamendable and which violates the statute. In that situation, the Secretary of the Commonwealth commits an illegal act when he permits such a paper to be filed and, for that, Sec. 977 does not prescribe the remedy.
But even if there is a remedy at law to set aside nomination petitions or papers where the invalid affidavits appended thereto are unamendable, it is by no means a full, adequate and complete remedy. The nomination papers here in question were filed on the last day available for that purpose (May 9, this year). The seven days for filing of objections thereto automatically began to run from that date. But the Secretary of the Commonwealth had a "reasonable time" under the statute (Sec. 976) to examine the papers after their filing. Such papers do not actually become legally operative actsuntil the Secretary has accredited them for filing. See Boordv. Maurer,
Speaking of mandamus, I think the Secretary would have been well advised had he denied filing privileges to the nomination papers here involved and left the rectitude of his action in such regard to be determined by *635 a mandamus proceeding at the instance of the American Labor Party, its candidates or members. No question of jurisdiction could then have been raised to thwart a decision on the merits in the court below.
I should reverse the decrees and remand with directions that injunctions issue restraining the Secretary of the Commonwealth from certifying the nominees of the American Labor Party for places on the November ballot.