Perles v. Hoffman

213 A.2d 781, 419 Pa. 400, 1965 Pa. LEXIS 523

Opinions

Opinion by

Mr. Chief Justice Bell,

These are consolidated appeals from Orders of the Court of Common Pleas of Northumberland County which dismissed two complaints in mandamus. The Court below refused to order the County Board of Elec-' tions (1) to accept a withdrawal by William H. Bradley, the Democratic nominee for office of County Controller, and (2) to accept George F. Per les as the substitute nominee.

William H. Bradley was duly nominated at the primary election held May 18, 1965. During the summer, Mrs. Bradley became seriously ill with a respiratory disease diagnosed during the first week in August as emphysema. She was advised by her physician to move to a dry climate. Bradley then decided to withdraw as a candidate and to move with his wife and eight children to Albuquerque, New Mexico.

Footnotes

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*

August 9th was the eighty-fifth day before the general election in November 1965, and the last day for withdrawal of a candidate, as provided by §978 of- the Election Code.** Bradley prepared a letter of with drawal dated Friday, August 6th, and signed by him on Monday, August 9th, on which day the letter was handed by him to Kehler, one of the three members of the Board of Elections. It was delivered to Kehler in the office of the County Board of Elections.

Kehler did not present Bradley’s letter to the Board, of Elections until three days later, viz., August 12th, during which period he shelved the letter to the County-Democratic Committee. That Committee chose George F. Perles as successor candidate to Bradley at its meeting on Wednesday, August 11th. The reason given byKehler for the three-day delay was that it was desirous that the letter be presented to the Board when the Chairman, who was absent on August 9th, was present.

The Board refused to accept the withdrawal on the grounds that delivery to a board member rather than-to the office of the County Board of Elections was not. a valid legal delivery.

The substitution of Perles was refused by the Board: and by the lower Court solely on the ground that Bradley had not properly and validly withdrawn as a candi-, date and therefore no vacancy existed.

The parties stipulated that if Bradley’s withdrawal were found to be valid, the selection of Perles would have been accepted by the Board of Elections, since the substitution petition was properly and timely presented.* The net result of the decisions of the Board of Elections and of the lower Court is that the Democratic Party would have either no candidate or a likely-nonresident candidate on the ballot in the November election and the people of that district would have no real opportunity to exercise a choice or vote for a. candidate of their choice.

The present case is controlled in principle by Altoona Mayor Substitute Nomination Case, 413 Pa. 305, 196 A. 2d 371 (1964). In the Altoona case, the propriety of the withdrawal by the first candidate and by his substitute was not objected to, although the withdrawal of the substituted candidate was filed after the time then set by the Code. Furthermore, the substituted nomination certificate was filed seven days after the date set by §981 of the statute.* This Court held that the substitution was valid (a) under §1006** of the Code, and (b) because the Code must be liberally construed. The Board correctly states in its brief that “. . . the clear, underlying thread of reasoning [in the Altoona case] is based upon the proposition that electors should be permitted a choice between two candidates.” Since, in the Altoona case, one candidate had withdrawn and the substitute candidate’s withdrawal was not questioned, if the substitution petition had not been-accepted, only one candidate would have appeared on the ballot. This would have operated to deprive the electorate of a choice between candidates, if the Code had been strictly construed. Appellants first rely on a technicality and secondly on unrealistic and stretched reasoning.

If the substitution provision of §981 is construed as directory only, as was held in Altoona, there would be an apparent inconsistency if the withdrawal provision of §978 is considered mandatory. The reasoning applying to the one applies equally to the other. In both cases the practical result of a mandatory and literal construction of the provision would be to deprive the voters of a real choice between candidates.

To obtain freedom of choice, a fair election and an honest election return were the purposes and objectives of the Election Code; these purposes and objectives are in accord with sound public policy. This Court has held, we repeat, that “the Election Code must be liberally* construed so as not to deprive an individual of his right to run for office, or the voters of their right to elect a candidate of their choice.” Ross Nomination Petition, 411 Pa. 45, 48, 190 A. 2d 719, 720 (1963). See also to the same effect, Altoona Mayor Substitute Nomination Case, 413 Pa., supra; County Commissioner Substitute Nomination Case, 383 Pa. 372, 118 A. 2d 750 (1955).

The Orders of the Court below are reversed and the Board of Elections of Northumberland County is directed to remove the name of William H. Bradley from the ballot in the forthcoming general election and substitute therefor the name of George F. Perles.

Mr. Justice Eagen concurs in the result. Mr. Justice Jones dissents.

Mrs. Bradley and the children moved to' New Mexico on August 18th, but Bradley has not yet moved.

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Act of 1937, June 3, P. L. 1333, §§978, 981(a), 25 P.S. §§2938, 2941, as amended, the pertinent provisions of which are as follows: “[§978] . . . Such written withdrawals shall be filed with the . . . county board of eléctions ... at least eighty-five (85)- days previous to the day of the general or municipal election. Such withdrawals to be effective must be- received ... in the office of any county board of elections not later than the ordinary closing hour of said office on the last day for filing same.

“[§981] (a) Substituted nomination, certificates to'fill vacancies caused by the withdrawal of candidates nominated at primaries or by nomination papers shall be filed with the . . . proper county board of elections ... at least seventy-five (75) days before the day of the general or municipal election . . . ,”

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On August 12th, the ballots had neither been ordered nor printed.

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Act of 1937, June 3, P. L. 1333, §981, §1006, 25 P.S. §2941, as amended, §2966.

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Section 1006. of the Code provides: “As soon as any substituted candidate shall have been duly nominated, at any time prior to the day on which the printing of ballots is started, his name shall be substituted in place of that of the candidate who has died or withdrawn.” (emphasis, ours)

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Italics, ours.