In re Removal of Minority District Election Inspector

Lackawanna County Court of Quarter Sessions

In re Removal of Minority District Election Inspector

1 Pa. D. & C.2d 783, 1954 Pa. Dist. & Cnty. Dec. LEXIS 274

CourtLackawanna County Court of Quarter Sessions

DecidedMay 17, 1954

StatusPublished

This text of 1 Pa. D. & C.2d 783 (In re Removal of Minority District Election Inspector) is published on Counsel Stack Legal Research, covering Lackawanna County Court of Quarter Sessions primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Removal of Minority District Election Inspector, 1 Pa. D. & C.2d 783, 1954 Pa. Dist. & Cnty. Dec. LEXIS 274 (Pa. Super. Ct. 1954).

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Opinion

Hoban, P. J.,

This is a petition of Anthony De Napole, candidate for district com[784]*784mitteeman on the Republican Party ballot, seeking to have Charles Aliano removed as minority inspector in the district, because Aliano is in effect a nonresident of the district, therefore is not a qualified elector and hence ineligible to serve as a member of the election board. A hearing was held on the rule, at which the principal witness was respondent himself. From his testimony it appears that he is the duly elected minority inspector of election in the first district of the second ward of the Borough of Dunmore; that he has held this position continually for some 17 years; that 12 or more years ago he was transferred from his position as an employe of the Erie Railroad Company at the Dunmore shops to another job with the same company in Susquehanna, Pa.; that he has been continually employed in Susquehanna from that time to the present; that his wife, children and he live in Susquehanna during the week; that he himself owns a property on Willow Street in the Borough of Dunmore within the election district; that his mother resides in that property and from time to time at weekends he, when possible, returns to Willow Street in Dunmore; that occasionally, but not habitually, his wife and children accompany him; that as a matter of intention he never intended to give up his formal residence in Dunmore; that he has not paid any wage tax in the Borough of Dunmore, although the borough has an ordinance providing for the assessment of a wage tax against residents of the borough; that his Federal income tax returns are filed as from his Dunmore address and that Federal income tax notices are directed to the Dunmore address.

District election officers are constitutional officers and are subject to removal only in the manner provided by the Constitution. This court has no jurisdiction in a summary proceeding to effect the removal of an election officer. It has, however, the right to [785]*785declare that an individual may be disqualified as an election officer if he does not possess the qualifications required by the Constitution or the laws, and then declare the existence of a vacancy in the office. In re Carbondale District Election Board, 62 D. & C. 49.

To determine the residence for the purpose of qualifying one as an elector the mere assertion of intention to consider one address as against another the legal domicile of the elector, is not sufficient. See the Election Code of June 3,1937, P. L. 1333, and particularly subdivision (d), 25 PS §2814 (d).

It seems to be clear from the testimony that the real home of Aliano is in Susquehanna, for there is where his family have for 12 years maintained their principal dwelling place, with- all the outer aspects of permanency. See Stabile Registration Case, 348 Pa. 587. In view of the clear provision of the Election Code and the decision in the Stabile Case, we have no option but to declare that respondent is ineligible as an elector in the first district of the second ward of the Borough of Dunmore and consequently is disqualified to hold office as a member of the election board thereof. Since he is disqualified to hold office^ we must consider that a vacancy exists and on proper application in accordance with the provisions of the Election Code showing that a vacancy exists, this court will make an appointment to fill the vacancy.

' Now, May 17,1954, on consideration of the petition and the testimony in the above-captioned case, the court declares that Charles Aliano, being ineligible to be an elector in the said election district, is accordingly disqualified as a member of the election board of that district, and that a vacancy therefore exists in the office of minority inspector of election in the said district. Application for appointment to fill the vacancy to be made in accordance with the provisions of section 405 of the Election Code.

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Hoban, P. J.,

This is a petition of Anthony De Napole, candidate for district com[784]*784mitteeman on the Republican Party ballot, seeking to have Charles Aliano removed as minority inspector in the district, because Aliano is in effect a nonresident of the district, therefore is not a qualified elector and hence ineligible to serve as a member of the election board. A hearing was held on the rule, at which the principal witness was respondent himself. From his testimony it appears that he is the duly elected minority inspector of election in the first district of the second ward of the Borough of Dunmore; that he has held this position continually for some 17 years; that 12 or more years ago he was transferred from his position as an employe of the Erie Railroad Company at the Dunmore shops to another job with the same company in Susquehanna, Pa.; that he has been continually employed in Susquehanna from that time to the present; that his wife, children and he live in Susquehanna during the week; that he himself owns a property on Willow Street in the Borough of Dunmore within the election district; that his mother resides in that property and from time to time at weekends he, when possible, returns to Willow Street in Dunmore; that occasionally, but not habitually, his wife and children accompany him; that as a matter of intention he never intended to give up his formal residence in Dunmore; that he has not paid any wage tax in the Borough of Dunmore, although the borough has an ordinance providing for the assessment of a wage tax against residents of the borough; that his Federal income tax returns are filed as from his Dunmore address and that Federal income tax notices are directed to the Dunmore address.

District election officers are constitutional officers and are subject to removal only in the manner provided by the Constitution. This court has no jurisdiction in a summary proceeding to effect the removal of an election officer. It has, however, the right to [785]*785declare that an individual may be disqualified as an election officer if he does not possess the qualifications required by the Constitution or the laws, and then declare the existence of a vacancy in the office. In re Carbondale District Election Board, 62 D. & C. 49.

To determine the residence for the purpose of qualifying one as an elector the mere assertion of intention to consider one address as against another the legal domicile of the elector, is not sufficient. See the Election Code of June 3,1937, P. L. 1333, and particularly subdivision (d), 25 PS §2814 (d).

It seems to be clear from the testimony that the real home of Aliano is in Susquehanna, for there is where his family have for 12 years maintained their principal dwelling place, with- all the outer aspects of permanency. See Stabile Registration Case, 348 Pa. 587. In view of the clear provision of the Election Code and the decision in the Stabile Case, we have no option but to declare that respondent is ineligible as an elector in the first district of the second ward of the Borough of Dunmore and consequently is disqualified to hold office as a member of the election board thereof. Since he is disqualified to hold office^ we must consider that a vacancy exists and on proper application in accordance with the provisions of the Election Code showing that a vacancy exists, this court will make an appointment to fill the vacancy.

' Now, May 17,1954, on consideration of the petition and the testimony in the above-captioned case, the court declares that Charles Aliano, being ineligible to be an elector in the said election district, is accordingly disqualified as a member of the election board of that district, and that a vacancy therefore exists in the office of minority inspector of election in the said district. Application for appointment to fill the vacancy to be made in accordance with the provisions of section 405 of the Election Code.

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1 Pa. D. & C.2d 783, 1954 Pa. Dist. & Cnty. Dec. LEXIS 274, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-removal-of-minority-district-election-inspector-paqtrsesslackaw-1954.

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