Appeal, No. 30, May T., 1951, from order of Court of Common Pleas of Dauphin County, Commonwealth Docket, 1950, No. 334, in case of Michael J. Eagen v. Gene D. Smith, Secretary of the Commonwealth of Pennsylvania et al. Order affirmed.
J. Julius Levy, with him Earl V. Compton, for appellant.
Harry F. Stambaugh, Special Counsel, with him Charles J. Margiotti, Attorney General, and Samuel M. Jackson, Deputy Attorney General, for appellee.
Thomas Raeburn White and Maurice Stern, for the Honorable GROVER C. LADNER, intervenor.
Before Drew, C.j., Stern, Stearne and Jones, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
The Honorable Michael J. Eagen, appellant, contends that he was lawfully elected a justice of the Supreme Court of Pennsylvania at the general election held November 7, 1950, and brought this proceeding in mandamus to compel the Secretary of the Commonwealth, the Honorable GENE D. SMITH, to so certify. The Court of Common Pleas of Dauphin County refused to issue the writ and this appeal was then filed.
The question before us arises because of the untimely deaths of three members of this Court in the first half of 1950 -- Mr. Justice PATTERSON on January 6, Mr. Chief Justice MAXEY on March 20, and Mr. Justice LINN and June 13. These vacancies occurred more than three months before the November 7th election, but only the first of them preceded the primary election held May 16, by more than ten weeks. The significance of these facts will become apparent hereafter.
Appellant contends that under Art. V.§ 25*fn1 of the Constitution of this Commonwealth all vacancies occurring more than three months prior to the next general election must be filled at that election. He further argues that Art. V. § 16*fn2 prescribes the voting method
for filling vacancies in this Court where more than one exist and that as to two of the vacancies here in question that section was satisfied. Appellant concludes from these contentions that since he received the second highest number of votes at the November 7 election, he should be declared elected to this Court to fill the vacancy caused by the death of Mr. Chief Justice MAXEY.
This position of appellant is necessarily based on the premise that Art. V. § 25 and Art. V, § 26 of the Pennsylvania Constitution are self-executing. A careful reading of these sections unquestionably shows that the former merely authorizes the filling of the vacancies by the Governor for a specific period of time, and the latter only sets forth the number of candidates for whom each voter will vote where more than one vacancy exists. Neither section supplies a procedure for conducting an election, i.e. the manner in which candidates should be chosen or how the electorate should be notified of the offices to be filled. It is quite clear, therefore, that legislation is required to render the provisions of the Constitution relief upon by appellant effective. This contention of appellant must fail, since constitutional provisions as to elections, such as here under consideration, which show by express terms or necessary implication the necessity for action by the legislature in order to become effective, are not self-executing: 16 C.J.S. Constitutional Law § 53; Cooley's Constitutional Limitations (8th Ed.), Vol. 1, p. 165. See O'Neill v. White, 343 Pa. 96, 100, 22 A.2d 25, where a provision, similar to that set forth in Art. V, § 25, was held not to be self-executing.
Furthermore, appellant's own argument demonstrates the fallacy of this position. He states that two vacancies were filled at the November 7th election, because, under Art. V, § 16, the voting procedure is the
same where there are two vacancies as it is where there is only one, in that each voter votes for but one candidate in both instances. However, he concedes that the third vacancy was not filled because no machinery was set up to elect a third justice. Under this reasoning, the Constitution would be self-executing as to two vacancies but not as to three. Such argument is absurd, for it is obvious that if the Constitution is not self-executing as to all vacancies in this Court, it cannot be self-executing as to any one of them.
Appellant further insists that even if the Constitution is not self-executing, the Pennsylvania Election Code*fn3 executed it and all of the essential provisions of the Code for electing two justices were followed. This argument is also without merit, for on March 7, 1950, the tenth Tuesday preceding the primaries, a single vacancy existed as a result of the death of Mr. Justice PATTERSON, and that vacancy was the only one that the Secretary of the Commonwealth could certify to the county boards in compliance with Section 905*fn4 of the Pennsylvania Election Code. Appellant urges, however, that Section 905 is non-essential to the functioning of the electoral machinery and the fact that the second vacancy caused by the death of Mr. Chief Justice MAXEY occurred after March 7, 1950, did not prevent that office from being contested both at the primary and the general election. A similar contention was first made in Commonwealth v. Blankenburg, 218 Pa. 339, 67 A. 645, where this Court held that a like provision in the Act of February 17, 1906, P.L. 36, was mandatory and could not be varied because of later occurring vacancies.
There we said (p. 341): "... the things to be done are a series of prescribed steps for a prescribed purpose. The terminus ad quem whereto they all lead is the spring primary whose date is fixed and immovable. The initiatory step of the series is the notice by the secretary of the commonwealth to the county commissioners, and the next is the publication. For these the statute fixes in positive terms the exact time ..." (Italics added). Thus, the requirements of Section 905 are an integral part of the election machinery and may not be ignored.
Furthermore, under Section 906 of the Election Code it is necessary for the county boards to publish in the newspapers not more than nine weeks nor less than eight weeks before the primary the names of all offices for which nominations are to be made. Under that section, publication for the 1950 elections took place during the week of March 14 to 21. The second vacancy on this Court did not arise until March 20, 1950. It would have been a physical impossibility for the Secretary of the Commonwealth in the ensuing twenty-four hours to notify every county board and they in turn to notify the newspapers to correct the advertisement to show two vacancies existed in this Court. Newspapers in a number of counties are published only once a week, and therefore, many could not have printed a correction until after March 21. Thus under appellant's argument until after March 21. ...