American Labor Party Case

Opinion by Mr. Justice Patterson, TMs is a proceeding instituted by Joseph Kane, appellant, pursuant to Section 977 of the Pennsylvania Election Code 1 to set aside nomination petitions for candidates of the American Labor Party. The petition was dismissed by the court for want of jurisdiction, for the reason that a copy of said petition was not served upon the County Board of Elections within the time prescribed by the Election Code. On April 24, 194.5, nomination petitions for candidates of the American Labor Party, containing about 7000 signatures of qualified electors, were filed in the office of the County Board of Elections of Philadelphia. *578 Appellant filed a petition in the Court of Common Pleas No. 4 of Philadelphia County to have the said nomination papers set aside on May 16, 1945, the last day prescribed by the election code for filing such petitions. The petition alleged, inter alia, that most of the signatures, were fraudulent, that the affidavit of the qualified elector was false, and that the papers contained apparent material errors and defects. At appellant’s request the office of the prothonotary was kept open after the usual closing time so that the said petition could be filed. A copy of the petition was not served upon the county board of elections until the following day, May 17. On that day the court fixed May 28 as the day for hearing on the petition. It also directed that service of notice of the filing of the petition and of the time and place of hearing be served upon the candidates named in the nomination papers not later than five days prior to the date fixed for the hearing. Counsel for the county board of elections and for the nominees entered appearances de dene esse, challenging the jurisdiction of the court to consider the petition for the reason that service of a copy of the petition had not been made upon the county board of elections within the time prescribed by Section 977 of the Election Code. The court refused appellant’s offer of proof to show fraud on the part of the person or persons who filed the nomination papers, and dismissed the petition for want of jurisdiction. On July 6 this appeal was filed, and August 31 was fixed for a special session to hear arguments. Appellant contends that (1) the provision of the Election Code requiring that service of a copy of any petition challenging the validity of nomination papers be made upon the county board of elections within the time limit prescribed for the filing of the original petition is directory only, and (2) there has been substantial compliance with the Code. *579 The mandatory or directory nature of a statute depends on whether the thing directed to be done is of the essence of the thing required: Singer v. Delaware L. & W. R. R. Co., 254 Pa. 502, 505; Socialist Labor Case, 332 Pa. 78; Deibert v. Rhodes, 291 Pa. 550; Norwegian Street, 81 Pa. 349, 354. A mandatory provision is one the failure to follow which renders the proceeding to which it relates illegal and void. A directory provision is one the observance of which is not necessary to the validity of the proceeding. See Deibert v. Rhodes, supra. “When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice”: Harris v. Mercur (No. 1), 202 Pa. 313, 318. The legislature has prescribed a period of seven days after the last day for filing nomination papers as the time within which persons desiring to object to the validity of any nomination petitions must file a petition seeking to set aside such petitions and serve a copy of the same upon the proper officer or board. Unless these requisite procedural steps have been properly performed, the nomination papers are deemed valid and a court is without power to set them aside. Use of the word “shall” indicates that the statutory time limit is mandatory. Consideration of the election machinery and other mandatory time limits provided by the code forces a similar conclusion. The Board of Elections is not, as urged by appellant, a party entirely disinterested in the matter. “The Election Code makes the County Board of Election more than a mere ministerial body. It clothes it with quasi-judicial functions . . .”: Boord v. Maurer, 343 Pa. 309, 312. Section 953 of the Code (25 P.S., Section 2913) provides a period of 30 days before the last day for filing nominating petitions, within which time the petitions must be prepared. Any signature not bearing a date within said 30 days “shall” not be counted. All nomination petitions must be filed at least 20 days prior to the date of the primary *580 election. Appellant concedes that the requirement that the original petition to set aside the nomination papers shall be presented to the Court of Common Pleas, of the county in which the nomination papers are filed, within 7 days after the last day for filing nomination papers is mandatory. The requirement that “a copy of said petition shall, within said period, be served on the officer or board with whom said nomination petition or paper was filed” assures the physical presence of a copy of a petition to strike off nomination papers in the same public office in which the nomination papers are on file. The copy, together with the challenged petition, becomes a public record open to inspection by the public. See Section 308 of the Election Code (25 P.S. Section 2648). The essence of the thing required is having a copy of a duly filed petition to set aside the nomination papers on file as a public record not later than 7 days after the last day for filing nomination papers. Proper filing of both the petition and a copy thereof must be had before an appeal to a court of common pleas has been perfected. Failure to perfect an appeal within the time prescribed by the legislature is fatal to appellant’s case. Cf. Singer v. Delaware L. & W. R. R. Co., supra, 504, 505; Harris v. Mercur (No. 1), supra, 317. Clearly the legislature intended all provisions of Section 977 to be mandatory. It could not, however, constitutionally impose upon the courts mandatory duties pertaining to the exercise of the judicial function: Socialist Labor Case, supra, 80. As applied to all others, the provisions are mandatory. Appellant’s contention that to hold the provision mandatory will permit the perpetration of a vicious fraud upon t&e public and rigidity of interpretation will foreclose flexibility of action would render the statute a nullity. Each failure to comply strictly would necessitate judicial determination of a reasonable time, under the circumstances, within which the required service must be made. Laxity and delay in perfecting appeals *581 to the courts of common pleas would be encouraged. Matters of vital importance to our popular election system of government would be removed from tbe uniform and definite, and relegated to uncertainty dependent upon a question of degree and relative desirability. This tbe legislature has wisely foreclosed by enactment of tbe statute in question. Clearly, appellant’s duty to serve a copy of tbe petition upon tbe County Board of Elections witbin tbe time limit prescribed for tbe filing of tbe petition was mandatory. Tbis legislative mandate cannot be waived or dispensed with by tbe court. Appellant’s contention that there has been substantial compliance is, therefore, without merit. Tbe court below was of opinion that it was without jurisdiction. “The test of jurisdiction is whether tbe court has power to enter upon tbe inquiry, not whether it may ultimately decide that it is unable to grant tbe relief sought in tbe particular case”: Main Cleaners & Dyers, Inc., v. Columbia Super Cleaners, Inc., 332 Pa. 71, 74. Jurisdiction relates solely to tbe competency of tbe court to bear and determine controversies of tbe class to which tbe case immediately presented belongs. Cf. Welser v. Ealer, 317 Pa. 182. Tbe court below bad jurisdiction to bear tbe petition in question. It could not, however, grant tbe requested relief for tbe reason that appellant failed to prove compliance with tbe mandatory provisions of tbe Election Code. Tbe decree of tbe court below is affirmed. Costs to be paid by appellant. Footnotes [1] “AU nomination petitions and papers received and filed within the periods limited by this act shall be deemed to be valid, unless, within seven days after the last day for filing said nomination petition or paper, a petition is presented to the court of common pleas of the county in which the nomination petition or paper was filed, specifically setting forth the objections thereto, and praying that the said petition or paper be set aside. A copy of said petition shaU, within said period, be served on the officer or board with whom said nomination petition or paper was filed”: Act of 1937, P. L. 1333, Section 977, as amended by Act of 1943, P. L. 353, Section 1, 25 P. S., Section 2937.