Olshansky v. Montgomery County Election Board

412 A.2d 552, 488 Pa. 365, 1980 Pa. LEXIS 511

• Court: Supreme Court of Pennsylvania
• Decided: March 20, 1980
• Status: Published

Opinions

OPINION

LARSEN, Justice.

A general election, including the office of tax collector of Whitpain Township, was held on November 6, 1979. On November 19, 1979, in the Court of Common Pleas of Montgomery County, Civil Division, a petition to contest the election was filed by the defeated tax-collector candidate Maria Olshansky and certain named registered electors (hereinafter called appellants) against the winning tax-collector Charles Cannon, the Montgomery County Election Board, the Whitpain Township Republican Campaign Committee and its Chairman, Charles Lewis (hereinafter called appellees). A $1,000 bond was filed by appellants on November 21, 1979. In preliminary objections, appellees alleged that appellants’ bond was improper and therefore requested the lower court to dismiss appellants’ petition to contest the election. By order dated January 2, 1980, the lower court dismissed appellants’ petition on the grounds that appellants’ bond had failed to comply with the Election Code’s bonding provision, Act of June 3, 1937, P.L. 1333, art. XVII, § 1759, as affected, 25 P.S. § 3459 (Supp.1979-80).¹ Appellants appealed the dismissal of their petition to contest the election directly to this Court.

Appellants first contend that the bond which they filed was not so substantially or materially defective as to warrant dismissal by the lower court for failure to satisfy the Election Code’s bonding provision. This provision provides:

Whenever a petition to . contest election of any class shall be presented ... to the court, it shall be the duty of said petitioners, within five days thereafter, to file a bond, signed by at least five of the said petitioners in such sum as the . . . said court shall designate, with two or more individual sureties of a corporate surety to be approved by the . . . court or judge, conditioned for the payment of all costs which may accrue in said contested . . . election proceeding, in case the said petitioners by decree shall be adjudged liable to pay said costs, and if the said bond shall not be filed, as herein provided, the said petition to contest the . election shall be dismissed, (emphasis supplied).

In light of the express language of this provision, appellants’ contention lacks all merit for, as the record unambiguously demonstrates and as the lower court set forth in its thorough opinion, appellants’ bond deviated from the Election Code’s requirements in the following significant respects:

(1) said bond was not signed by at least five petitioners, in fact it was not signed by any of the petitioners; (2) the amount of the bond was not designated by the court, in fact no request was made to any judge to designate a bond in any amount (3) the corporate surety was not approved by the court, nor was such approval ever sought; and (4) said bond was not conditioned for the payment of all costs which may accrue in the contested election proceeding. (Opinion of lower court at 9).

Such deficiencies are clearly sufficient to warrant dismissal of the petition to contest the election since, as the facial language of the Election Code’s bonding provision explicitly mandates, “if the said bond shall not be filed, as herein provided, the said petition to contest the election shall be dismissed.”² (emphasis supplied). Furthermore, this Court’s decisional law has long held to the principle that the filing of a bond in substantial conformity with the Election Code’s bonding provision is also a condition of the lower court’s jurisdiction to hear and adjudicate the contest. Moritz’s Contested Election, 256 Pa. 537, 100 A. 1033 (1917). For these reasons, the lower court did not err in dismissing appellants’ petition.

Appellants’ second contention is that the petition should be upheld on the grounds of public policy and the public interest. Specifically, appellants maintain that an election should not remain “shrouded in a cloud of doubt” thereby eroding the public’s confidence in the elective franchise. The legislature of this Commonwealth likewise shares appellants’ concern for protecting the elective franchise from erosion and debilitation. By requiring full compliance with the statutory bonding requirements — assuring, thereby, the filing of a proper, timely and sufficient bond — the legislature has protected the elective franchise from dilatory and costly disruptions which would gravely injure the elective process. Thus our holding here, in fact, enhances the elective franchise and challenges associated therewith by requiring adherence to the law by all the contestants.

Appellants’ third contention is that the inadequate bond which they filed is authorized by a general bonding provision found in the “Statutory Construction Act of 1972,” Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290 § 3 (1978 Appendix to 1 Pa.C.S.A. § 1906). This general bonding provision provides:

A statute requiring a bond or undertaking with sureties to be given by any person shall be construed to permit in lieu thereof a bond of indemnity or surety bond for the amount of such bond or undertaking, given by any indemnity or surety company authorized to do business in this Commonwealth, and approved by the proper authority.

Appellants argue that this general bonding provision offers an alternative to the specific bonding provision of the Election Code. Appellant’s argument is without merit. A well-known rule of statutory construction, Statutory Construction Act of 1972, Act of November 25, 1970, P.L. 707, No. 230, added December 6, 1972, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1933, provides that when a general provision in a statute shall be in irreconcilable conflict with a special provision in the same or another statute, “the special provisions shall prevail and shall be construed as an exception to the general provision, . . ..” Application of this rule makes it patently clear that the Election Code’s specific bonding provision is controlling. To construe matters otherwise would result in a total emasculation of the express requirements of the bonding provision of the Election Code. The legislature could not have intended such an anomalous result.³

For the reasons set forth above, the order of the lower court dated January 2, 1980 dismissing appellants’ petition to contest the election is affirmed.

EAGEN, C. J., concurs in the result. ROBERTS, J., filed a dissenting opinion in which NIX, J., joined.

1 . For the very same reason, the lower court’s order of January 2, 1980, also dismissed appellants’ amended petition filed on December 4, 1979.

2 . This Court has affirmed dismissals of petitions to contest an election where only single defects were present in the bonds. See McChesney’s Contested Election, 326 Pa. 438, 192 A. 415 (1937) (petition was dismissed where petitioner signed bond as surety even though his suretyship was surplusage); Burns’s Contested Election, 315 Pa. 23, 171 A. 888 (1934) (petition was dismissed where no seal intended on the bond); Knoxville School District Election, 274 Pa. 354, 118 A. 307 (1922) (petition was dismissed where bond defective because proper number of sureties failed to sign said bond); Moritz’s Contested Election, 256 Pa. 537, 100 A. 1033 (1917) (an unsealed bond is defective and required dismissal of petition). A fortiori, where cumulative defects are present in the bond, as in the instant case, dismissal is clearly warranted.

3 . Appellants would additionally have us reach an issue going to the merits of their election challenge, namely, whether the lower court has inherent power to examine violations of a criminal nature and whether it has power to impose criminal penalties for an alleged violation of an election law governing political advertisements. Because appellants’ case fails for want of an appropriate bond, we do not reach this issue.