Primary Election Case , 411 Pa. 154 ( 1963 )

Opinion by

Mr. Justice Eagen,

Albert H. Swing and William A. Welsh, presently serving as county commissioners of Delaware County, Pa., and whose term of office expires on the first Monday of January, 1964, are candidates for nomination in the coming primary election on May 21, 1963. Under the provisions of the Act of June 3, 1937, P. L. 1333, §301, 25 P.S. §2641, the county commissioners of each county in the Commonwealth are specifically designated and directed to serve as the County Board of Elections and to perform all duties imposed in said tribunal subject to the proviso hereinafter discussed.. On May 7, 1963, the Court of Common Pleas of Delaware County, upon the filing and consideration of a petition by the representatives of a citizens’ committee, entered an order designating three members of said court to act as the County Board of Elections and “to act in all matters pertaining to said primary election to be held on May 21, 1963, and for the purposes thereof, to have all rights, duties and obligations of the County Board of Elections of Delaware County.”

We construe this order to be effective as of the date it was filed. This order exceeded the scope of the court’s legal authority. The court’s power under the circumstances presented is purely statutory. The Act of January 14, 1952, P. L. (1951) 1936, §1, as amended, 25 P.S. §3153, provides that if any member of the county election board is a candidate for nomination or election to public office that he is disqualified from acting as a member of said board for the purpose of computing and canvassing the returns of the election in which he is involved. The Act further provides that if a majority of the members of said board are disqualified then two or more members of the court of common pleas shall be designated to serve as the Return Board for the computation and canvassing of the vote.

There is no authority giving the court the power to supersede the statutorily designated members of the county election board except under the circumstances and for the purposes specifically stated above. Therefore, the court below had the limited power to appoint two or more members of sqid court for the purposes of serving as a Return Board to compute and canvass the returns of the elections. This is not to be construed as impinging in any manner upon the duties and responsibilities given to the court itself by the Pennsylvania Election Code, specifically the Act of June 19, 1939, P. L. 449, §1, as amended, 25 P.S. §3046..

As modified, the order of the court below is affirmed.