Forty-sixth State Senatorial District Election ( 1922 )

Cummins, J.,

The returns of the general election in this county of Nov. 7th, last, were presented by the prothonotary to this court, at 12 o’clock noon, on Thursday, Nov. 9, 1922, whereupon the same were opened and computation thereof begun by the court, aided by its officers and sworn assistants, who had for that purpose been regularly appointed. Saturday, Nov. 11, 1922, being Armistice Day, and the several offices of this court being closed for the whole of that day, an order of adjournment until Monday, Nov. 13, 1922, was, during the evening of Friday, Nov. 10, 1922, duly made and filed.

The 5th Precinct of the Borough of McDonald, as appears by the court records of this county at No. 315, August Term, 1921, Q. S., and No. 337, February Term, 1922, Q. S., was formerly a portion of the Township of Fayette, Allegheny County, and was, during the year 1921, attempted to be annexed to said borough under the provisions of the Act of May 25, 1921, P. L. 1142, which statute was enacted fifteen days subsequent to the passage of the Act of May 10, 1921, P. L. 449, fixing the boundaries of our present State senatorial districts. The court having discovered that among the returns made was one from said 5th Precinct of the Borough of McDonald of votes therein cast for the several candidates for State Senator in the 46th Senatorial District, on Nov. 13, 1922, and within three days after said returns had been so brought into court for computation, as by section 13 of the Act of Jan. 30, 1874, P. L. 31, as amended, it was required to do (32nd Congressional District of Pennsylvania Election Returns, 256 Pa. 342, 345), made and filed an order holding that said 5th Precinct of the Borough of McDonald was not within the territorial limits of said 46th Senatorial District; that the making of said return therefrom was, therefore, a palpable mistake; and that said return should be excluded in tabulating the votes cast for candidates for State Senator in said senatorial district. Later, during said Nov. 13, 1922, a petition was presented to the court, alleging that said return was a nullity; pursuant thereto a summary process was issued to the election board of said election district, requiring them to appear and make answer to the allegations set forth in said petition. On Nov. 14, 1922, a rule was issued by the court upon the several candidates for the office of State Senator in the said 46th State Senatorial District, requiring them to show cause, if any they had, why the court should not certify the final aggregate vote for State Senator in the County of Washington, with the 5th Precinct of the Borough of McDonald omitted therefrom; the disposition of which said rule is now before this court.

The contention that, even if the 5th Precinct of the Borough of McDonald is not within the boundaries of the 46th Senatorial District, the court in this district has no power or jurisdiction to refuse to tabulate a return therefrom, although admittedly illegal, cannot be sustained either by logic or authority. The Amendatory Act of May 6, 1909, P. L. 425, now expressly makes it the duty of the Court of Common Pleas (not merely a judge thereof) to examine the returns made, and if any apparent or palpable mistake is discovered, to correct such mistake in order that the return certified by the court (not a judge thereof) under its seal may be “a just return:” 32nd Congressional District of Pennsylvania Election Returns, 256 Pa. 342, 345; In re 40th Division, 22nd Ward, 18 Dist. R. 211; Foster’s Case, 15 Phila. 362. The court’s jurisdiction may be limited, but not its power to function within the Scope of its jurisdiction. Within the scope of its jurisdiction, the court is not a mere adding machine, as suggested. Its powers are judicial, not mechanical. The adding machine may make a correct count, but it cannot distinguish between right and wrong. The court, however, is required to make a just return. The act expressly requires the court not only to correctly tabulate the returns, but to examine the returns made to see if any are missing. It follows, therefore, that in order to know whether any returns are missing, the court must not only know what the boundary-lines of the senatorial district are, but what election districts go to compose it, and this is only requiring the court (not a judge thereof) to know and exercise the same judicial knowledge required of it in any proceeding. If the court is required by the act to judicially know what voting districts compose our State senatorial district, can it be argued in the same breadth that the same court is not also required to know and to exclude election returns made from voting districts wholly outside of our own senatorial district? The court is not only presumed to know, but is required in every proceeding to take judicial knowledge of, not only, all general laws, but likewise of all public local laws (Van Swartow v. Com., 24 Pa. 131), and is, therefore, required to know and take judicial knowledge of the Act of May 10, 1921, P. L. 449, apportioning this State into State senatorial districts and defining the boundary-lines thereof. Furthermore, even as a general proposition, our courts are required to know and take judicial knowledge of the boundaries of the State and its divisions and the limits of such divisions: Pearce v. Langfit, 101 Pa. 507, 512; Com. v. Salawich, 28 Pa. Superior Ct. 330, 332; Com. v. Kaiser, 184 Pa. 493, 497; Fire Ins. Co. v. Keller, 9 Dist. R. 61; Sandy Lake Borough v. Gas Co., 16 Pa. Superior Ct. 234; Sheraden Borough, 34 Pa. Superior Ct. 639. What more palpable or apparent mistake, then, could be brought to the attention of the court than to find among the returns one from a portion of the County of Allegheny and wholly outside the territorial limits of the 46th Senatorial District? If required to tabulate such a return, why not one from the County of Pike or Luzerne, or from a State senatorial district in Texas or Colorado? How could this court, with the judicial knowledge of these facts expressly required of it by the act of assembly, include such a return and certify under its seal that such return so certified was “a just return?” In fact, as a legal proposition, the return of these votes cast in Allegheny County was so obviously and palpably a mistake that counsel, who, upon argument, insisted that they should be counted, declined to even discuss the proposition of the legality of such a return, being content with the argument that the court in this instance, notwithstanding the apparent illegality of such a return, was a mere adding machine, stripped of its judicial knowledge, powers and functions, and that it, therefore, could not correct such apparent mistake, which position, as we have already observed, is untenable. The only real question involved is whether the 5th Precinct of the Borough of McDonald is within the' 46th Senatorial District, and this question presents no difficulties.

Our State Constitution (art. XI, § 18, see 1 Purdon, 142) directs our legislature, at its next session after each United States decennial census, to apportion the State into senatorial districts. This authority, vested in the legislative session next succeeding such census, is, at least when exercised, exclusive, and precludes any subsequent session of the legislature from altering the senatorial districts so created, or in any manner changing the boundary-lines thereof until after the next succeeding census: Leib v. Com., 9 Watts, 200, 226-27. See, also Page et al. v. Allen et al., 58 Pa. 338, 346, and Com. ex rel. Hepburn v. Mann, 5 W. & S. 403, 415. Pursuant to this constitutional mandate, our legislature, at its next session after the United States decennial census of 1920, by Act of May 10, 1921, P. L. 449, divided this State into fifty senatorial districts, and, agreeable to the constitutional limitation already referred to, provided, further, that this apportionment should continue in effect until the next United States decennial census is taken and an apportionment made thereon. It follows, therefore, that the 5th Precinct of the Borough of McDonald is not a part of the 46th State Senatorial District, unless included within the boundaries of 'that senatorial district as created by said Act of May 10, 1921, P. L. 449. This act, by section 1 thereof, provides that the “46th District” shall be composed of the Counties of Greene and Washington; and, by section 2 of the act, that the boundary-lines thereof shall be determined as of the date of said census. As the 5th Precinct of the Borough of McDonald was not annexed to said borough until long after the completion of said census (under an act not even passed until May 25, 1921), it follows, therefore, that it is not a part of the 46th Senatorial District, but lies wholly within the 45th District, which was composed of a portion of the County of Allegheny. So that, even if the 5th Precinct of the Borough of McDonald by annexation had later become a part of the County of Washington, still it would not thereby become a part of the 46th Senatorial District. Further discussion is unnecessary in order to dispose of the question now before this court, but, in order to make clear the rights of those electors residing within the 5th Precinct of the Borough of McDonald, it should further be observed that said precinct has not become and is not a part of the County of Washington for at least county and State purposés.

The Act of May 25, 1921, P. L. 1142, which, it might be argued, effects this result, is an amendment of the General Borough Act of May 14, 1915, P. L. 312, sometimes referred to as the “Borough Code.” As shown by its title, it is “An act providing a system of government for boroughs (not senatorial or congressional districts), and revising, amending and consolidating the law relating to boroughs.” In construing this amendatory act, it must be read into the original act as if it had been originally a part thereof, and so as to harmonize therewith: Endlich on Interpretation of Statutes, § 40, page 51. Since the adoption of our present State Constitution, the title to an act is not only a part of the act, but limits its scope and aids in its proper construction: Matis et al. v. Schaeffer, 270 Pa. 141; Halderman’s Appeal, 104 Pa. 251, 259; Cochran v. Library Co., 6 Phila. 492, 493; Railroad Co. v. Riblet, 66 Pa. 164, 169. It is clearly apparent, therefore, that it was the legislative intent to permit of such annexation only for purely borough purposes, leaving the portion so annexed, for at least county and State purposes, still within the county of which it was a part. This amendatory act (even if the legislature had authority so to do), by its enacting clauses, does not expressly purport to alter the territorial boundaries of congressional or State senatorial districts, nor to change the apportionment of the State into representative districts, and if such construction were given to it by implication, the act clearly would be unconstitutional as offending against art. in, § 3, of the Constitution, for no notice of such intention appears in the title to the act: In re Road in Phœnixville, 109 Pa. 44; Sewickley Borough v. Sholes, 118 Pa. 165. Where practicable, however, statutes will be construed so as to make them constitutional: Carr v. Ætna Accident and Liability Co., 263 Pa. 87, 106 Atl. Repr. 107; Baker v. Warren County, 11 Pa. Superior Ct. 170. The provision in the act with reference to school districts, while perhaps misleading, is but declaratory of the result effected by the “School Code” (Act of May 18, 1911, P. L. 309) in cases where the boundaries of a borough are altered by annexation. The elections referred to in the act cannot mean other than the elections held by and for the boroughs affected, the subject-matter of this legislation, and, as a collateral result only, school district elections. It should be observed that section 2 of the Act of May 10,1921, P. L. 455, which apportions the State into State representative districts, expressly provides that any ward created subsequent to the completion of any United States decennial census shall continue to belong to the district of which it was previously a part. Note, also, that no provision appears in the act for adjusting county indebtedness between the two counties affected by such annexation. Then, again, the act in question expressly provides that all State and county taxes collected in the annexed territory shall be payable to the county of which it was, prior to the annexation, a part, clearly indicating that while, for the purposes of borough government, it was intended that it might be treated in a way as annexed to the county in which the annexing borough was located, yet that, in fact, except for purely borough purposes, it still remains a part of the county in which it was located before the annexation.

From the conclusions thus reached, it follows that the court committed no error in its tabulation of the State senatorial vote in the 46th Senatorial District by its refusal to tabulate the election return from the 5th Precinct of the Borough of McDonald, which lies wholly within the County of Allegheny and wholly outside of the 46th Senatorial District.

There is grave doubt in the mind of the court as to the constitutionality of the said Act of May 25, 1921, P. L. 1142, providing for annexation to boroughs, but, by reason of the conclusions already reached, a determination of that question becomes unnecessary' in this proceeding.

This court requested Judge J. A. Mcllvaine, retired, to prepare and submit to it an advisory opinion dealing with the matters involved in this proceeding, which same was duly submitted by him and is filed herewith.