*1 274 record on the issue
both Where the is silent rights.” in that the Common explicitly have held we question, appellant was the burden of proving wealth has that his waiver was informed order to show fully Com intelligent. supra; and knowing E.g., Wilson, 446 245 Pa. A. 2d monwealth v. 431 Ritchey, (1968). who the attorney
At
PCHA
appеllant’s
hearing,
unable
living
him at trial
still
represented
who
had
told that he
was ever
testify
appellant
to
whether
did
appeal.
free
on
Thus as we
to
counsel
right
supra,
in our unanimous decision
we
Bitehey,
a
of law
earlier
that as mattеr
holding
“reaffirm our
knowing
intelligent
a
of a
finding
there cannot be
shall
counsel unless the accused
right
waiver
informed that he is entitled
explicitly
been
have
Commonwealth v. Wil
indigent.
if he
counsel
free
Opinion by. Cohen, Mr. 1969: May 9, Justice This is an resulting challenges action of certain absentee ballots the November validity Coun- in Northumberland 1967, General Election held In Board the contest for third member ty. led County appellee (Kehler) Commissioners, Both appellant (Williams). candidates challenged of certain ballots before the Election counting absеntee Kehler Board. From an ruling adverse the Board, en special took an was heard which *3 motion banc this Court. Williams filed a appointed by filed on the basis that appeal to dismiss special court The period. the beyond stаtutory filing appeals found otherwise and Williams the refusal of motion from other rulings Ms to dismiss and grant the court. disposing of Election Board order the
The written 29, February the filed challenges Thursday, of the Court of appeal took his Common 1968. Kehler March on County Pleas Northumberland Monday, of allows for tak- days The Election Code two 4, The decision of the from the Board.1 appeal an ing computation elapsed of where days as to dispute arises be falls upon appeal filed may which day the final contends that the Election Saturday. Appellant aon §2603, Art. 25 1333, I, P. L. P.S. §103, of 1937, Code terminal not exclude a Saturday does which Appellee statute. and the the applicable counting, 1959 maintain amendmеnt to the- lower court of P. L. Act Art. 1937, Construction 1019, superseded has the Election Code §538, 46 P.S. Ill, §38, §1407, 1 3, 1937, 1333, L. P. 25 P.S. §3157. June Act of Saturday and that the exclusion of a terminal in the permits appellee appeal 1959 amendment to file his following Monday. agree. оn the We The 1959, Construction asAct, amended, August any period of P. L. “When §1, reads: 691, any period time is referred to in cases, such all law, computed . . . he shall so as to exclude the first period. day include the last such Whenever period day аny Saturday or last such shall fall on any day legal holiday by Sunday, or on made a Commonwealth or of United States, laws computation.” day such shall be omitted language meaning statutory It of this is clear. “any refers to law” and “all cases.” This su- section persedes computation previously ef- method on all express repealer fective laws. No of the method computation required in the Election Code is be- used L. §66 of P. cause Act, provides Art. P.S. that the with law §566, IV, prevail if an ir- the latest date of enactment is to passed between at dif- reconcilable conflict exists laws Appellee legislative ferent filed within the sessions. required days Monday, he filed his two when ignore would March 4. To hold otherwise еxpressed legisla- Statutory Construction Act and the tive intent. *4 unnecessary to decide an this examina- case,
While history posi- legislative further substantiates our tion of passed regulate compu- original statute to tion. The P. Act of June L. covered 20, 1883, tation of time, 136, only orders, decrees court rules, laws but also and not of by-laws municipal of and or resolutions, ordinances, corporations. private public The 1883 Act was other and computation attempt govern the of to time a broad an legislature part spеctrum matters. of re-enacted of pertaining by incorporating to “laws” Act it also, into the of re- Construction Act It Code enacted that of into the part the 1883 Act Election of 1937. the 1959 amended the Stat- legislature When Act P. L. so to utory Cоnstruction as 1959, 691, amended exclude as a terminal also Saturday date, the' 1883 Act at P. L. as to exclude Satur- so 1959, 692, ordi- as a terminal date in day orders, rules, decrees, Thus there nances, resolutions, by-laws. in which attempt meticulous to covеr all the situations compu- the terminal Saturday changing is day by update It attempt tation time. was a careful to spectrum the 1883 Act and make uniform the broad no room matters therein. This. would leave covered Election legislative Code excluding itself patterned The Election Code scheme. which is from the Act respect to be over the legislative pattern. not exalted entire order day the second Board’s following
Since Mon- appellee March until had Saturday, 2, 1968, lower file. For this reason the March day, 4, 1968, mo- appellant’s did not err refusing grant tion to dismiss. ap- the other contentions of the
We have reviewed determination and conclude that pellant appointed by of Commоn Pleas en banc, Court Special preside C. Bell in all matters Chief Justice John cor- election of November from the arising n rect. affirmed. Orders Opinion
Dissenting Mr. Justice Jones: I dissent am because opinion forced am to the amendmеnt the recent Construc- to this case. applicable not Act is tion specific Code is very The Election its require- question no whatsoever that under ments, *5 the Code from the Election Board to the Common Pleas Court other filed. On the untimely Construction stat- hand, Statutory Act is a general ute in designed interpretation to aid construc- tion of statutes which are or silent on the ambiguous in point question. question ap- The involved this peal clearly controlled unequivocally by Elеction there no in the Code lan- Code, ambiguity con- guage there is no to even and, therefore, necessity sider the Construction Statutory Act. opinion
The majority that effect, maintains, recent amendment to the Construction Act Statutory repeals of the Election Code. §103(e) This amend- repealer repealing contains no ment, however, section, either or A stat- explicitly impliedly §103(e). general such as the cannot ute, Statutory Construction Act, repeаl implication a specific statute such as provision in the Election Code. stat- the two Instead, interpreted utes must be as consistent other, with each if all possible. interpretation Such an is possible, for never intended the Con- legislature struction amendment limitations apply to the time contained the Election Code. ignores
The the fact that majority Act be Construction resorted to when there only interpreted. is an the statute to be Here ambiguity there is no сontention is any ambiguity the Election Code. The results when the ambiguity attempts apply Statutory Construction majority of this case. legislature Act to the facts Surely, for the intended never Act an ambiguity. to create applied Statutory Construсtion Act original adopt- of the the enactment Election Code and prior ed provision the tabulation Act contained of days. legislature provision, included a simi- Despite *6 provision days for tabulation of in the Election lar the controlling appeals If the Code all election cases. legislature to intended the Construction Act provision apply in the to the Election then this Code, n superfluous. the Code Given fact this, Election amending legislature, in Con- thаt the the provi- repeal corresponding the did not Act, struction believe that the sion the Election Code leads me to legislature never the intended specific apply very to detailed and structure Act to the of the Eleсtion Code. interpretation of in this case, the facts
Under considering error in court below committed even the appeal of ICehler. Oscar the the Instead, questioning the absentee ballots without counted have challengе qualifications to the of the voters since a the period qualifications not raised within the time required by Code. the Election express my disagree-
In must also the alternative, majority’s of the resolution the merits ment with appellant’s cаse. considering .in Oscar
After
the
raised
contentions
plac-
petition,
court below
an order
Kehler’s
the
issued
upon
justify
ing
their
burden
the absentee voters to
right
ballot.
I am most disturbed
to vote
absentee
brought against
challenge
an
is
аbsentee
that once a
person challenged
must
election,
ballot after
establishing
validity
carry
burden of
of an
ballot
issuance
absentee
and
board’s
election
county
before
board. This
status
bur-
his absentee
important
inеquitable
very
especially
when two
is
den
ample
(1)
opportunity
for
realized:
are
facts
lodged prior
challenges
to
ballots
to absentee
to the
published
applicants
of all
list
when
election
challenge
(2)
at
issue here
ballots;
arises
such
person who
status
claims
can-
absentee
when
a time
regular
place
challenge
polling
not vote at his
if the
upheld
totally
should be
and thus is
disenfranchised.
object
point,
always
As
the latter
been thе
has
op-
“provide
our election
laws
the elector with an
portunity
possible,
thus
take
if
curative action,
preserve
privilege
balloting.”
Ab-
of absentee
sentee Ballots
As all of our it is view here brings that the burden must the rest on the one who challenge. ruling if the of the court alternative, prevail, below is to would result in a situation where might challenged regard all absentee ballots without only purposes challenge, merits but of harassment. This would cause those AvhoAvishto advantage hardship take of such ballots considerable many exercising privilege deter their of the presumption validity franchise. believe (after application exist for and ballots issuance of by Board), any the Election and that burdens should rest on those who seek to hаve the absentee ballots overturned. position adopted
This is consistent with the view by Appeal, trial courts. In two the case of Petrucci (Luzerne 1965), 38 Pa. D. C. 2d & 677 C.P. specifically “We court en banc held, rule that . . . the upon proof challenger burden of to establish support challenge in truth of his averment of his preponderance of the the fair credible evidence before City Duquesne And in of elections.” the board Elec Appeals, Pa. D. & C. (Allegheny 39 2d tion challеnge 1965), right stated “The C.P. of the upon based ballot ... absentee to an contention testi- Florida a vacation. The they were burden and the does not sustain mony contention, met.” contention has not been proving such bur- placed cоurt erroneously I believe the trial committing absentee ballots on those cast thus den who I conclude error. prejudicial Therefore, un- hearing error committed first, below disposition merits. filed its of the second, timely I dissent. For reasons, these joins this dissent. Mr. Justice Roberts Philadelphia Tax Review Freedman Board, v.
Appellant. *8 Before C. J., Bell, November Argued JJ. O’Brien Eagen, Roberts, Jones, Cohen,