Brooke v. Commonwealth ex rel. Jenkins , 1878 Pa. LEXIS 32 ( 1878 )

Mr. Justice Mercur

delivered the opinion of the court,

The contention in this case must he decided by the construction to be given to the Act of 10th March 1875.

A reference to some of the laws changed by this act will assist in giving a clearer understanding of its intent and purpose.

The Act of 21st March 1861, Pamph. L. 165, directed the election of members of councils, in the city of Philadelphia, to be held on the second Tuesday of October in each year. It declared that each ward should have one member of Select Council, who should serve for three years from the first Monday of January next succeeding their election, and that one-third of Select Council should be chosen each year.

Under this law, in October 1873, Downing was elected a member of Select Council, for the term of three years from the first Monday of January 1874. Hence, not only the term of Downing, but the term of all the class or third of which he was a member, would expire on the first Monday of January 1877.

While thus holding an office, the term of which was fixed by the Act of 1861, the constitution of 1874 went into effect. Article 8, section 3, required all elections for city, ward, borough and township officers, for regular terms of service, to be held on the third Tuesday of February. Article 3, section 13, declared that no law should extend the term of any public officer after his election or appointment.

Thus the constitution designated the only time at which a member of the councils could be elected for a “regular term,” but imposed no restraint on legislative power prescribing the time when an election might be held to fill a vacancy for the unexpired term ; nor did it forbid the enactment of any law lengthening the term of such officers thereafter to be elected, provided it was done prior to their election ; and it left to legislative discretion to fix the time for them to enter on the duties of their office.

The Act of 1861 did not authorize the election of a member of councils to fill a vacancy, to be held at any other time than at the general election in October.

In case the vacancy occurred soon after the election, it would leave the office vacant for nearly a year. To obviate this objection, the Act of 27th April 1874, Pamph. L. 638, was passed. It declared, “ in case of a vacancy occurring hereafter, in either branch of the councils of Philadelphia, the qualified voters of the ward, at the next election, shall elect a person for the unexpired term.”

In July 1875, Downing resigned his office. The vacancy thus created should have been filled by an election in October of the same year. The fact that it was not filled until the election in February following, does not affect the question we are now considering. The present purpose is not to decide when the official term of the person elected to fill the vacancy began, but when it ended.

It would seem the words of the Act of 1874 make this sufciently clear by declaring the voters shall elect a person “ for the unexpired term.” It certainly was not intended to give to the locum tcnens, or substitute, an office to continue beyond the end of the term of the one whose place and unexpired term he was elected to fill. The act did not contemplate any disarrangement of the three classes, nor of the time when the term of each should expire.

Under the law in force at his election, Downing’s term expired in January 1877. The constitution of 1874 forbade its extension by legislative enactment. In the absence of language clearly indicating such an intent, we will not assume the legislature intended to extend the term of the person elected to fill the vacancy, beyond the time fixed by law for the expiration of Downing’s term. To extend it beyond would be more than to fill the vacancy which his resignation created.

This brings us to a consideration of the 1st section of the Act of 10th March 1875, Purd. Ann. Dig. 2047, pi. 53. It declared, inter alia, “all members of councils to be elected on the third Tuesday of February next, or in any year thereafter, whose term of office would, under existing laws, expire prior to the first Monday of April, shall continue in office from the date at which said term would otherwise expire, until the first Monday of April next ensuing thereto; and the terms of their successors shall begin on the first Monday of April, and shall continue for the period now fixed for the duration thereof by existing laws, in each particular case. Arid hereafter all elections for offices which will be vacant on the first Monday of April, shall be held on the third Tuesday of February next preceding thereto.”

Thus this act did not direct that the election for members of councils should be held on the third Tuesday of February; but it recognised the fact that the constitution required them “ to be elected” then for a regular term. The legislature was aware that, under the laws then in force, the term of a member of councils began and ended on the first Monday of January, and therefore he could not enter on the duties of his office until more than ten months after his election. The time of his election they could not change, but they could designate the time when he should assume his.official duties. To shorten the intervening time, to not permanently lengthen a regular term beyond three years, and at the same time not to disturb the existing division into three classes, the act provided: 1. For a longer term for each member to be first elected at the expiration of each term, which, under existing laws, would expire in January. The term of each to be so elected was to extend until the first Monday of April next following the January when the term would otherwise have expired. As the term of all members of councils then in office expired in January, this act necessarily extended the term of all members to be elected at the expiration of those terms. This, however, was limited to the first election in each case. 2. As soon as the object of requiring the person elected to enter on the duties of his election within a few weeks after his election was accomplished, then the regular term was again to be three years only. This was in entire harmony with the constitution of 1874.

It necessarily follows that, inasmuch as Downing’s regular term would have expired on the first Monday of January 1877, the person elected to fill the vacancy caused by his resignation was elected “for the unexpired term” only. The fact that the sheriff, in his proclamation giving notice of the election, declared that the person to be elected would serve until the first Monday of April 1877, could not change the statute nor extend the term. The term for which Downing was elected, as well as the term of the person who filled out the unexpired portion of Downing’s term, expired on the first Monday of January 1877. Hence the third Tuesday in February 1876 was the proper time to elect a successor, to enter on his duties in January 1877. The respondent, John Gr. Brooke, was, at said election in February 1876, duly and legally chosen a member of the Select Council from the Fourteenth ward of the city of Philadelphia, for a regular term. The learned court erred in not entering judgment in his favor on the demurrer.

Judgment reversed, and judgment in favor of the plaintiff, John G. Brooke, on the demurrer, with costs.