
    Election of an Increased Number of Justices of the Peace in South Bethlehem Borough.
    The general principles laid down in the authorities point to the facts that honest mistakes or mere omissions- on the part of election officers, or irregularities in directory matters, even though gross, if not- fraudulent, will not avoid an election, unless they affect the result or at least render it uncertain.
    An election was held in the Borough of South Bethlehem, Feb. 19, 1901, being the date of the regular municipal election, at which the question of increasing the number of Justices was submitted to a popular vote, and the ballot was not prepared in accordance with the Act of June 21, 1839, P. L. 377.
    ElectioN Officers — Ballot—Protest Against Issuance of Commission.
    July 31, 1902.
   Opinion by

Fleitz, Deputy Attorney General of Pennsylvania.

Attorney General’s department. Submitted to Hon. W. W. Greist, Secretary of the Commonwealth.

Your recent letter to the Attorney General, enclosing records and other papers relative to the issuing of commissions to F. J. Krause and Henry Krauskopf, who claim to have been elected as Justices of the Peace for the Borough of South Bethlehem at the municipal elections in February last, and asking for an opinion in regard to the same, has been referred to me.

From the papers and the evidence presented at a hearing before me, which was attended by all of the interested parties, together with their counsel, T find the following facts:

1. South Bethlehem is a borough, and, under the general borough laws of the Commonwealth as well as Art. V, Sec. 11, of the Constitution of 1874, is entitled to only two Justices of the Peace, unless such number be increased by a majority vote of the electors thereof.

2. At a regular municipal election held in the Borough of South Bethlehem on Feb. 19, 1901, the electors voted in favor of increasing the number of Justices of the Peace by three.

3. At the regular municipal election held in the said borough on February 18, 1902, Henry Krauskopf and F. J. Krause were duly elected by a majority of the voters thereof as additional Justices of the Peace, and, having filed their acceptances and their bonds, are now asking your department for their commissions as siich officials.

4. Several citizens of the Borough of South Bethlehem, among them the two present Justices of the Peace, have filed a written protest in your department, objecting to the issuing of commissions to the above-named Krauskopf and Krause, alleging that the increase in the number of Justices of the Peace at the municipal election of 1901 is invalid, for the reason that the advertisements. of the same and the ballot used were illegal, inasmuch as they provided for an increase of three, whereas the Act of Assembly providing for such increase limits the number to two. If this contention is correct, it is clear that the commissions cannot issue, as no offices have been created and there exist no vacancies to be filled.

The legal authority for an increase in the number of Justices of the Peace in any ward, borough or township in the Commonwealth is found in Section 4 of the Act of June 21, 1839, P. L. 377j which reads as follows:

“That if the qualified voters of any ward, borough or township in this Commonwealth shall desire to elect more than the number of Justices of the Peace or Aldermen prescribed by this law for such ward, borough or township, such qualified voters may, at the time and places of holding constables’ elections, express such desire and consent in the following manner, namely. Such of the said voters as are in favor of electing more Justices or Aldermen, shall vote tickets labeled on the outside with the word ‘Justices’ or ‘Aldermen,’ and the inside of such tickets shall contain the words ‘Increase one’ or ‘Increase two,’ as they may desire, and such of the said voters who are opposed to the election of more Justices or Aldermen, shall vote tickets labeled ‘Justices’ or ‘Aldermen’ on the outside, and the inside of such tickets shall contain the words 'No increased And if it shall appear by such election that a majority of the qualified voters within such ward, borough or township are in favor of electing more Justices or Aldermen, then such additional number of Justices or Aldermen, shall, at the next constable’s election there-, after, be elected and commissioned in the same manner as the other Justices and Aldermen are under this Act. Provided, that no election shall be held under this section unless at least fifty qualified voters of the proper ward, borough or township shall give notice in writing to the constable thereof that they desire to vote at the next constable’s election thereafter for such increase, and, on receiving such notice, the said constable shall, by at least ten written or printed hand-bills put up in the most public places in said ward, borough or township, at least twenty days before said election, give notice that at said election a vote will be taken to ascertain whether the qualified voters of said ward, borough or township consent to the election of a greater number of Justices or Aldermen. And it shall be the duty of the officers and others holding such election under this section to make out true duplicate returns of the same, and file one of said returns in the office of the Prothonotary of the proper county; and in case a majority of the voters of such borough or township are in favor of an increase, the proper Constable shall immediately transmit by mail to the Governor the other of the said returns, and no such increase in any ward, borough or township shall exceed two.”

The only deviation in this case from the precise method pointed out by the Act of Assembly was in the preparation of the ballot, upon which the question was submitted in a single proposition, to wit: “Shall there be an increase of three Justices of the Peace for the Borough of South Bethlehem?” And upon this question the voter was required to vote “Yes” or “No.” The learned counsel for the protestants contends that the exact language of the law above quoted should have been followed and the electors given an opportunity to vote for an “Increase of one” or an “Increase of two” or for “No increase,” by printing the three propositions separately upon the ballot; that a failure to do so, together with the further fact that the increase voted for exceeded the legal number of Justices provided for by the Act, invalidates the entire election, and that consequently, the subsequent election of Messrs. ICrauskopf and Krause must be set aside.

It is contended, however, on the part of the claimants, that a mistake or error in the preparation of the ballot does not invalidate the election, but that the excess should be treated as surplusage, and the expressed wish of a majority of the electors of the borough for an increase of the number of Justices of the Peace should be respected. It is argued further, in support of the contention that the preparation of the ballot was a mistake, that only two candidates presented themselves for election subsequently, and are now here claiming their commissions. If three had been elected, it would undoubtedly have been impossible to ascertain which of them were entitled to commissions, and your department would have been justified in refusing to issue them. But this question does not arise. The only one before us is whether the action of the voters of the borough of South Bethlehem, at the municipal election held on February 19, 1901, providing for an increase of three Justices of the Peace, was in accordance with law and constitutes a valid increase to the limit fixed by the Act of Assembly, to wit, two, or whether it is invalid .and should be set aside.

The general principle governing elections is stated in 6 Am. & Eng. Ency. of Law (1st ed.), 334, Sec. 18, as follows: "The general. principles drawn from the authorities are that honest mistakes or mere omissions on the part of the election officers, or irregularities in directory matters, even though gross if not fraudulent, will not avoid an election, unless they affect the result or at least render it uncertain.”

After a careful consideration of all the facts and of such authorities as tend to throw light upon the disputed question of law, I am of the opinion that a majority of the voters of the borough having regularly expressed their desire to increase the number of Justices of the Peace, their wishes should be complied with, and I, therefore, advise you that the error complained of is not sufficient to justify you in withholding these commissions, particularly so in view of the fact that the objections may be raised in another tribunal and determined by a court of competent jurisdiction. The commissions asked for by Henry Kraus-kopf and F. J. Krause, as Justices of the Peace for the Borough of South Bethlehem, should therefore be issued forthwith.

Reported1 by Harry M. Bretz, Escp,

Harrisburg, Pa.  