
    Geary’s Case.
    
      Justice of the peace — Alderman—Vacancy in office — Conviction of infa~ mous crime — Appointment by Governor.
    
    Where an alderman has been convicted of an infamous crime and sentenced to prison and to disqualification from holding any public office in the future, a vacancy is created in the office which the Governor may fill by appointment.
    Department of Justice. Opinion to Hon. Gifford Pinehot, Governor of Pennsylvania.
    Dec. 29, 1924.
   Woodruff, Att’y-Gen.,

In answer to your inquiry concerning the aldermanship in the 1st Ward of the City of Allentown. Pennsylvania, I have considered the case as follows:

Horace W. Geary, duly elected alderman for that position, was indicted for misdemeanor in office on the counts of (a) extortion by taking illegal fees; (6) extortion by means of threats; (e) acceptance of bribe. Horace W. Geary was convicted of the above misdemeanors, and on Nov. 17, 1924, Hon. Claude T. Reno, presiding judge of Lehigh County, imposed a fine of $500 for extortion and another fine of $500 for acceptance of bribe, together with costs of the prosecution.

Also imposed on account of the extortion an imprisonment of one year in the Lehigh County Jail, “and, furthermore, that you (Horace W. Geary) be and are hereby removed from the office of alderman of the 1st Ward of the City of Allentown, in the County of Lehigh and State of Pennsylvania.”

Also imposed on account of bribery a sentence of imprisonment in the Lehigh County Jail for a period of five years from the expiration of the sentence of imprisonment imposed on account of extortion, making a total imprisonment of six years in the Lehigh County Jail.

Also, that the five-year imprisonment is to be suspended for a period of five years from the expiration of the previous sentence, such suspension being conditioned upon the good behavior of the defendant during said five-year period.

And, also, Judge Reno added to the sentence disqualification from holding any public office in this Commonwealth in the future.

Because of the conviction and the .sentences imposed, Horace W. Geary is unable to perform the duties of alderman for the year of imprisonment which he must undergo, and is also disqualified by the sentence of the court from holding any public office in this Commonwealth during the rest of his life, of course, including the position of alderman from which Judge Reno ousted him by the above sentence. In other words, Geary could not resume his duties as alderman at the end of his imprisonment because of the last item of sentence set forth above.

You ask whether, under the above circumstances, there is a vacancy in the position of alderman in the 1st Ward of the City of Allentown, Pennsylvania, such that it would be proper for you to appoint a successor to Horace W. Geary to serve until the next time when aldermen may be elected.

Section 4 of article vi of the Constitution provides that: “All officers . . . shall be removed on conviction of misbehavior in office or of any infamous crime.”

Section 8, article IV, of the Constitution provides that the Governor “shall have power to fill any vacancy that may happen, during the recess of the Senate, ... in any other elective office which he is or may be authorized to fill.”

Section 3 of the Act of March 22, 1877, P. L. 12, provides that: “If any vacancy shall take place (in any aldermanship for any reason) . . . such vacancy .shall be filled by appointment by the Governor until the first Monday of May succeeding the next ward . . . election.”

Pursuant to the above provisions, of the Constitution and the conviction of Horace W. Geary for an infamous crime, namely, extortion and bribery, and his consequent removal from office by sentence of the trial judge, a vacancy exists in the aldermanship in the 1st Ward of the City of Allentown, Pennsylvania, and, pursuant to the Constitution and the law enacted pursuant thereto, the Governor has power to fill the vacancy thus created.

Prom C. P. Addams, Harrisburg, Pa.  