Opinion
June 21, 1951.
June 22, 1951.
Elections — Primary election — Nominations — Death of candidate — Absence of substitution — Keeping name on ballot — Pennsylvania Election Code.
Under the Pennsylvania Election Code of June 3, 1937, P. L. 1333, as amended, where a candidate at a primary election for the office of County Commissioner files a petition for said office and dies before the last day permitted for his withdrawal, the County Board of Elections, when no substitution has been made, and before the ballots are printed, shall permit the name to remain on the ballot and shall cause lots to be cast for a position of the name on the ballot.
Mr. Justice BELL dissented.
Argued June 21, 1951. Before STERN, STEARNE, JONES and BELL, JJ.
Appeal, No. 202, Jan. T., 1951, from order of Court of Common Pleas of Northumberland County, Sept. T., 1951, No. 127, in case of John U. Shroyer and Dr. George A. Deitrick v. Leroy Thomas, Ray Leffler and James Kelley, constituting the County Board of Elections in and for the County of Northumberland. Order affirmed.
Mandamus proceeding.
The facts are stated in the opinion, per curiam, of the court below, as follows:
This is a complaint in mandamus in which the plaintiffs seek to compel the defendants, who comprise the County Board of Elections, to print the official ballot of the Republican Party for the summer primary election of 1951 without the name of Russel Persing appearing thereon as a candidate for nomination to the office of County Commissioner of Northumberland County.
The plaintiffs filed, simultaneously with their complaint, a petition for summary judgment. To both of these pleadings the defendants filed their answers. At the hearing held on this motion and complaint no testimony was taken, and it was stipulated no question of fact is put at issue by the pleadings, and only questions of law are to be determined from the admitted facts.
The following relevant facts appear from the record. The summer primary election for the purpose of selecting candidates for various county offices, including the office of County Commissioner of Northumberland County, is scheduled to be held July 24, 1951. Russel Persing, of the City of Shamokin, filed with the County Board of Elections, on or about May 18, 1951, his petition to have his name printed upon the official ballot of the Republican Party for the office of County Commissioner. He died, May 25, 1951. On May 28, 1951, the last day permitted by law for candidates to withdraw their petitions, his widow filed with the County Board of Elections a paper requesting the withdrawal of her late husband's name as such candidate. This request, the County Board of Elections, refused; and, on the following day, they caused, over protest, a lot to be drawn for the name of Russel Persing to determine its position on the official ballot. The plaintiffs and two of the defendants in this action are also candidates at this election for the office of County Commissioner on the Republican ticket. The ballots have not been printed.
Our first consideration is directed to the plaintiffs' motion for summary judgment. This motion is by authority of Rule 1098 of the Pennsylvania Rules of Civil Procedure, which provides: "At any time after filing of the complaint the court may enter judgment if the right of the plaintiff thereto is clear . . ."
A summary judgment under this rule is essentially the equivalent of a peremptory mandamus under Section 2 of the Mandamus Act of June 8, 1893, P. L. 345, 12 P.S. 1912, and it is only where the right to require the performance of an act is clear, and it is apparent that no valid excuse for its non-performance can be given, that a summary judgment may be awarded. Moore v. Neil, 233 Pa. 408.
Plaintiffs admit there is no direct mandate in the Election Laws providing for the removal of a candidate's name from an official ballot under the circumstances here presented. We conclude this is not a case where it is apparent on the face of the complaint that no valid excuse for not performing the act could be given.
The legal question presented for our determination is: When a candidate at a primary election for the office of County Commissioner has duly filed his petition for said office and dies before the last day permitted for his withdrawal, shall the County Board of Elections, when no substitution has been made, and before the ballots are printed, permit the name to remain on the ballot, and may they cause lots to be cast for a position of the name on the ballot?
In support of their position, the plaintiffs refer to the Act of June 3, 1937, P. L. 1333, 25 P.S. 2601, (hereinafter referred to as the Pennsylvania Election Code), section 1009 thereof, which provides, — "It shall be the duty of the county board of elections of each county to cause all the ballots and ballot labels to be used therein to be accurately printed . . ." They allege that the refusal of the County Board of Elections to remove the name of the deceased candidate from the official ballot is to print an inaccurate ballot. When this section is read with the following one (1010) a literal interpretation of the word "accurate" means proper spelling of names, proper spacing, correct position of candidates, and in general refers to all clerical errors, as well as mistakes and omissions of the County Board of Elections. In re Mistake in Printing of Ballots, 1946 General Election, 57 Pa. D. C. 649. We conclude the word "accurate" as used herein has no application to the printing or non-printing of the deceased candidate's name on the ballot under these circumstances.
The plaintiffs further contend that section 917 of the Election Code controls the instant case. This section designates "Manner of Filling Vacancy Caused by Death of Person Named in Nomination Petition", and provides: "Where a nomination petition has been duly filed for any primary, under the provisions of this article, and thereafter, and before the day of the primary, the candidate named in said petition dies, the original signers of said petition, or the majority of them, may sign another petition proposing a new candidate for said office at any time prior to the printing of the ballots or ballot labels. Said petition shall have the same force and effect as the original petition, and the name of the candidate so nominated shall be substituted for that of the deceased candidate." More specifically, it is argued that this section permits a substitution, but if no such substitution is made, then the death of Russel Persing had the effect of withdrawing his candidacy just as effectively as if he had withdrawn it by proper writing during his lifetime. To accept this theory of the case we would have to hold that the County Board of Elections should not treat a candidate who has died "as a candidate", and that his name on the ballot should be treated as surplusage, and, any votes cast for him, as nullities. This is in direct opposition to the law as pronounced in Derringe v. Donovan, 308 Pa. 469, at 477 (1932), where it is said, "The principles of popular government require that votes cast for a dead man as a candidate for public office shall not be considered mere nullities, but that they shall be regarded as expressions by the voters that they prefer the office to be declared temporarily vacant until it can be filled in the manner provided by law rather than that a person whom they voted against and who represents opposite policies should fill it for a full term." This legal proposition was affirmed some ten years later in McLane's Appeal, 345 Pa. 228 (1942), with the additional pronouncement by the Supreme Court that the same rule is applicable to primary elections as it is to general and municipal elections.
The plaintiffs strenuously urge that in the absence of express directions the legislature did not intend the name of a deceased candidate to remain on the ballot in the event there was no substitution. The Election Code was amended by the Act of May 6, 1943, P. L. 196, and this amendment provides: "That when a candidate for nomination shall have died before or on the day of the primary election and shall nevertheless receive a plurality of votes of his party electors cast for the office for which he sought nomination, then no candidate shall have been nominated for the office at such primary and a substituted nomination may be made in the manner hereinafter provided." This is an express direction that the candidate's name shall remain on the ballot in the event of his death on or before the primary, unless there is a substitution made.
It is additionally argued that to permit this candidate's name to remain on the ballot will cause confusion in that many voters, and especially those who are engaged in the armed services of the government, will not know he is dead. The answer to this argument is found in Derringe v. Donovan, supra, at page 475. If the voter did not know Persing was dead, his vote meant that he chose Persing for County Commissioner and rejected the candidates he voted against. If he knew Persing was dead, his vote for him meant that he preferred that a temporary vacancy should exist in the office of County Commissioner rather than any other men he voted against should fill that office. Nor do we find any merit to the plaintiff's additional contention that the County Board of Elections were without authority to determine the position of the name of the deceased on the ballot. The ballots have not as of this date been printed. We have no means of knowing for certainty whether or not there will be a substitution made in this case. The law provides that if there is a substitution the name of the candidate so nominated shall be substituted for that of the deceased candidate. Whether there is a substitution, or whether the name of Russel Persing remains on the ballot, the action of the County Board of Elections in appointing some person to cast lots for a position on the ballot was not error, but rather in compliance with the mandate of the Code.
The duties of the County Board of Elections are purely ministerial. They are prescribed by the Pennsylvania Election Code. They are given no discretion. What we are asked to do in this case is to direct the County Board of Elections to do something specifically they have no legal authority to do, and something legislative in character, which this court is without power to direct.
Plaintiffs appealed.
Robert T. McCracken, with him Russell S. Machmer and George G. Chandler, for appellants.
Bernard G. Segal, with him Frederick E. Lark, County Solicitor, Carl Rice, Gilbert W. Oswald and Schnader, Harrison, Segal Lewis, for appellees.
The order is affirmed on the opinion of the learned court below.
Mr. Justice BELL dissents.