American Labor Party Case , 352 Pa. 576 ( 1945 )

I dissent from the majority opinion. I think the provision in Section 977 of the Election Code as amended by the Act of May 21, 1943, P. L. 353, Section 1, 25 P. L. 2937, reading as follows: "A copy of said petition shall, within said period, be served on the officer or board with whom said nomination petition or paper was filed." was merely directory in character.

When the Legislature wished to make the provision as to filing objections to nomination papers within seven days after the last day for filing said nomination papers, it used language whose mandatory purport could not be mistaken. It said: "All nomination petitions . . . received and filed within the periods limited by this Act shall be deemed to be valid,unless," etc. [italics supplied]. If the Legislature wished the provision as to serving a copy of the objecting petition "within said period" [seven days] to be mandatory, it would have had two "unless" clauses instead of one in Section 977, and the second "unless" clause would have contained a provision as to the service of a copy of the objecting petition within the same period. The very substantial difference between the phrasing of the first and second complete sentences, respectively, in Section 977, supra, clearly indicates that the first sentence was a command while the second sentence was only a direction.

The long recognized test as to whether a statute is mandatory or directory is that given by Lord MANSFIELD in Rex v. Loxdale, 1 Burr. 447, as follows: "Whether a statute is mandatory or not depends on whether the thing directed to be done is of the essence of the thing required." This test has frequently been approved by the courts of this state. In Deibert v. Rhodes,291 Pa. 550, this court said: " 'Whether a particular statute is mandatory or directory does not depend upon its form, but upon the intention of the legislature, to be ascertained from a consideration of the entire act, its nature, its object, and the consequences that would result from construing it one way or the other': 36 Cyc. 1157; quoted with approval in McQuiston's Adoption, 238 Pa. 304, 308. 'When a statute directs certain proceedings to be done in a certain way, or at a certain time, the law will be regarded as directory and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being the essence of the thing required to be done': Coolbaugh v. Herman, 221 Pa. 496; and see Cowan's Est., 184 Pa. 339. One provision of a statute may be mandatory and another directory. 'Statutes, or particular provisions of statutes, may be either mandatory or directory. A mandatory provision is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding': 25 R. C. L. 766." Applying this established test and considering the object of Section 977, and the consequences which would result from construing the second sentence as mandatory, I am forced to the conclusion that the second sentence is not mandatory.

Even if the question was doubtful, the decision ought to be the one which would permit the court below to determine whether the charge of fraud in the creation of the nomination papers challenged is or is not well founded. If the charge is well founded, the papers should go the way of all other spurious papers; if the charge is not well founded, the papers and their sponsors should be cleared of the imputation cast upon them. If, as charged, there are on the nomination papers several thousand forged names, these papers constitute no legal foundation whatever for the allegedly made nomination papers of the American Labor Party, of certain candidates for Philadelphia city offices. The papers, if spurious, as charged, have no more legal standing than a forged will or a counterfeit hundred dollar bill. The one day's delay in notifying the board with which the alleged spurious nomination papers were filed, that these papers had been attacked on the day before by a petition filed in the Court of Common Pleas, did not in the slightest degree hamper that board in the performance of any duty cast upon it by law in respect to those papers. As the board made no objection to the filing of those nomination papers, the matter was out of its hands when the objecting petition was filed in due time in the prothonotary's office. The serving of a copy of the objection on the board was of no legal consequence. The question of the validity of the nomination papers was no longer a matter for it to pass on.

The petition filed on May 16th had put the parties in court. The Act of 1937, as amended in 1943, provides that "upon the presentation of such petition [that is, the petition filed in court in this case, in seven days] the court shall make an order fixing a time for hearing," and "on the day fixed for said hearing the court shall proceed without delay to hear said objections." All this indicates that the serving of a copy of the objecting petition on the board of election wasnot "of the essence of the thing required," but was of negligible or no import. It was a mere notice to an official body that the validity of certain alleged nomination papers was no longer before that body but was before the court. It had gotten there because objectors put it there on time. That a copy of their petition was served on the board of elections a day later had no prejudicial effect whatever on the proceedings then in court. The language used by that part of the Act directing the serving of a copy of the petition is in such striking contrast with the language it used in commanding the petition itself to be filed within seven days, that the contrast should be given the judicial significance it is obviously entitled to.

The law is well settled that when the statute says an appeal must be taken within a certain period that provision is mandatory, and no court can extend the time for taking an appeal. In the instant case the presentation of the objecting petition, to the Court of Common Pleas was analogous to the taking of an appeal, and if the objecting petition had not been filed within that seven-day period no court could grant the objectors any relief. But the objections were filed in seven days. It was merely the service of a copy of the objecting petition which was not filed in seven days.

If the law said that no appeal to the Supreme Court from the judgment of the Court of Common Pleas shall be "deemed to be valid" unless taken within ninety days from the entry of the judgment, and in another sentence said: A copy of the præcipe for the appeal shall be filed with the court below within the same period, I think we would have no difficulty in deciding that the first provision was mandatory and the second one merely directory.

The use of the word "shall" in a statute does not necessarily mean that it must be construed as a mandate. This court in an opinion by Chief Justice MITCHELL, In re Supervisor of NetherProvidence Township. Anderson's Appeal, 215 Pa. 119, 64 A. 444, held: "The word 'shall,' when used by the legislature to a court is usually a grant of authority and means 'may,' and even if it is intended to be mandatory it must be subject to the necessary limitation that a proper case has been made out for the exercise of the power:" Becker v. Lebanon, etc., St. Ry.Co., 188 Pa. 484.

In Com. ex rel. Bell v. Powell, 249 Pa. 144, 94 A. 746, this court quoted with approval the following from 135 Cyc. Law Procedure, 152: "It [the word 'shall'] may be construed to mean 'may' when no right or benefit to any one depends on its imperative use; when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction. . ." I think this language fits the instant case precisely and there are scores of decisions in this and in other jurisdictions which are in accord with the principle applied in the case just cited. What the Branch Appellate Court of Illinois said inPeople ex rel. Landwehr v. Humbracht, 215 Ill. App. 29, can be appropriately said about the use of the word "shall" in the case now before us. That court said: "The word 'shall' [in a statute] may be held to be merely directory when no advantage is lost, when no right is destroyed, when no benefit is sacrificed, either to the public or to any individual, by giving it that construction."

The court below clearly had jurisdiction of the subject matter of this case and of the parties. In my judgment the court below was not justified in refusing to hear the case and to grant the relief the facts warranted merely because the objectors to the nominating petition were one day late in serving on the board of elections a copy of the petition they had filed with the court within the required seven-day period. This service on the board amounted to no more than a notice to it of the pendency of the proceedings in court and the provision requiring this notice was no more than a mere direction. I would therefore reverse the order of the court below and let the facts as to the allegedly fraudulent nomination papers be judicially ascertained.

Mr. Justice JONES concurs in this dissent.