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FINNEGAN APPEAL (10/13/50)

October 13, 1950

FINNEGAN APPEAL


Appeal, No. 285, Jan. T., 1950, from order of Court of Common Pleas No. 2 of Philadelphia County, June T., 1950, No. 7328, in re General Election to be Held in the City and County of Philadelphia on November 7, 1950. Order reversed.

COUNSEL

David Berger, for appellant.

William T. Connor, for County Commissioners of Philadelphia (constituting County Board of Elections), appellees.

Marshall H. Morgan, for Republican Central Campaign Committee of Philadelphia.

Samuel M. Jackson, Deputy Attorney General, with him Charles J. Margiotti, Attorney General, for Commonwealth.

Before Drew, C.j., Stern, Stearne, Jones and Chidsey, JJ.

Author: Jones

[ 366 Pa. Page 7]

OPINION BY MR. JUSTICE JONES

The proceeding in the court below was without authority of law. There is no power in a Court of Common

[ 366 Pa. Page 8]

Pleas to render an advisory opinion except in an election matter under the jurisdiction conferred by Sec. 1206 of the Pennsylvania Election Code of 1937, 25 PS ยง 3046. Such jurisdiction, by the very terms of the grant, does not attach until seven o'clock a.m. on the day of each primary or election and then endures only until ten o'clock p.m. of the same day or for the relatively brief period of time thereafter "necessary to secure a free, fair and correct computation and canvass of the votes cast at said election." The express designation by the statute of the time and instances in which the jurisdiction may be exercised implies a negative on the exercise of such power at any other time or in any other cases: see Watson v. Witkin, 343 Pa. 1, 17, 22 A.2d 17. The stated conception of the learned judge of the court below that he was sitting in the instant matter (in September 1950) as "the same Election Court" that had functioned at the primary on May 17, 1950, is obvious error. The petition was "inconsistent with the statute" and should have been dismissed: cf. Philadelphia General Election Case, 332 Pa. 457, 459-460 2 A.2d 301. The legal procedure appropriate to the circumstances was not pursued.

The proper way to raise a question such as the petitioners present would be to invoke equity's jurisdiction to restrain, or the jurisdiction at law in mandamus to compel, conduct by the County Commissioners (acting as a board of elections) according as they may threaten to include more or less in their instructions to local election officers than what the law authorizes. However, inasmuch as the question of substance raised is of general public importance throughout the Commonwealth and has been fully briefed and argued on the merits by counsel representing divergent views, it ...


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