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PRIMARY ELECTION CASE. (05/16/63)

May 16, 1963

PRIMARY ELECTION CASE.


Appeals, Nos. 31 and 32, Jan. T., 1964, from order of Court of Common Pleas of Delaware County, No. 4236 of 1963, in re primary election, 1963, Delaware County, Pennsylvania. Order, as modified, affirmed.

COUNSEL

Edward H. P. Fronefield, County Solicitor, and Robert E. Porter, Assistant County Solicitor, for county board, appellant.

Joseph W. deFuria, for citizens' committee, appellee.

William A. Welsh, appellant, in propria persona.

Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.

Author: Eagen

[ 411 Pa. Page 154]

OPINION BY MR. JUSTICE EAGEN

Albert H. Swing and William A. Welsh, presently serving as county commissioners of Delaware County,

[ 411 Pa. Page 155]

Pa., and whose term of office expires on the first Monday of January, 1964, are candidates for nomination in the coming primary election on May 21, 1963. Under the provisions of the Act of June 3, 1937, P.L. 1333, § 301, 25 P.S. § 2641, the county commissioners of each county in the Commonwealth are specifically designated and directed to serve as the County Board of Elections and to perform all duties imposed in said tribunal subject to the proviso hereinafter discussed. On May 7, 1963, the Court of Common Pleas of Delaware County, upon the filing and consideration of a petition by the representatives of a citizens' committee, entered an order designating three members of said court to act as the County Board of Elections and "to act in all matters pertaining to said primary election to be held on May 21, 1963, and for the purposes thereof, to have all rights, duties and obligations of the County Board of Elections of Delaware County."

We construe this order to be effective as of the date it was filed. This order exceeded the scope of the court's legal authority. The court's power under the circumstances presented is purely statutory. The Act of January 14, 1952, P.L. (1951) 1936, § 1, as amended, 25 P.S. § 3153, provides that if any member of the county election board is a candidate for nomination or election to public office that he is disqualified from acting as a member of said board for the purpose of computing and canvassing the returns of the election in which he is involved. The Act further provides that if a majority of the members of said board are disqualified then two or more members of the court of common pleas shall be designated to serve as the Return Board for the computation and canvassing of the vote.

There is no authority giving the court the power to supersede the statutorily designated members of the county election board except under the circumstances and for the ...


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