In re Alignment of Election Districts

Opinion Per Curiam,

Orders reversed. Opinion to follow.

Mr. Justice Nix dissents.

Opinion by

Mr. Chief Justice Jones,

These appeals arise from orders of the Court of Common Pleas of Philadelphia County granting the petitions of the Philadelphia County Board of Elections for the consolidation and realignment of various election districts of the 14th Ward. Appeals were taken to the Commonwealth Court, but were then transferred to this Court pursuant to Section 503(b) of the Appellate *609Court Jurisdiction Act, 17 P.S.§211.503(b), since they involved the right to public office. See Smethport Area School District v. Bowers, 440 Pa. 310, 269 A.2d 712 (1970). After hearing argument on April 30, this Court, because of the public importance of a prompt disposition of these appeals, entered a per curiam order on May 9, reversing the orders below and indicating that an opinion was to follow. This is that opinion.

Appellant raises two arguments for reversal of the orders of the court below: (1) that the court abused its discretion in consolidating election districts on the eve of the filing deadline for nominations for district offices; and (2) that the notice provisions of Section 2704 of the Election Code, as amended, 25 P.S. §2704, were not complied with. We base our reversal on the lack of compliance with Section 504 and need not address appellant’s other argument.

Prior to 1943 the courts of quarter sessions were vested with exclusive and unfettered jurisdiction in the formation and division of election districts. See, e.g., In re Division of the Township of Bern, 115 Pa. 615, 9 A. 62 (1887). Article 8, Section 11 of the Pennsylvania Constitution of 1874, as amended, November 6, 1928, contained this grant of power, providing as follows:

“Section 11. Election districts
“Townships, and wards of cities or boroughs, shall form or be divided into election districts of compact and contiguous territory, in such manner as the court of quarter sessions of the city or county in which the same are located may direct; but the courts of quarter sessions, having jurisdiction therein, shall have power to divide or change the boundaries of election districts whenever the court of the proper county shall be of opinion that the convenience of the electors and the public interests will be promoted thereby.” In 1937 the Pennsylvania Election Code was enacted. Act of June 3, 1937, P. L. 1333, §1 et seq., as amended, 25 P.S. *610§2600 et seq. Article V(A) of the Election Code covered, inter alia, election districts. This section was found to be unconstitutional, however, because restrictive of the rights of the courts of quarter sessions to divide election districts as provided in Article 8, Section 11 of the Constitution. See, e.g., In re Election District, 86 Pitts. L. J. 320 (Pa. C. P. 1938). Consequently, in 1943 the constitutional provision was amended to provide as follows:
“Section 11. Election districts
“Townships and wards of cities and boroughs shall form or be divided into election districts of compact and contiguous territory and their boundaries fixed and changed in such manner as may ~be provided Toy law.” (Emphasis added.) Thereafter, Article V(A) of the Election Code was reenacted without change by the Act of April 4, 1945, P. L. 143.

For purposes of these appeals the pertinent portion of the Election Code is Section 504, which outlines the powers of the court in regard to the realignment of election districts. The court may act upon the petition of the county board of elections or upon the report and recommendations of the county board of elections as to the petition of twenty registered electors. The standard to be applied by the court in its decision is the promotion of “the convenience of electors and the public interest.” The additional proviso contained in Section 504 limiting the power of the court to realign election districts, and particularly apposite to the issue before this Court, reads as follows: “Provided, however, That the court shall not make any final order for the division, redivision, alteration, formation or consolidation of election districts until at least ten days after notice shall have been posted in at least five public and conspicuous places in the district or districts to be affected thereby, one of which notices shall be posted on or in the immediate vicinity of the polling place in each such district. *611Such notice shall state in brief form the division, redivision, alteration, formation or consolidation of election districts recommended by the county board, and the date upon which the same will be considered by the court, and shall contain a warning that any person objecting thereto must file his objections with the clerk of the court prior to such date. Upon the making of any such final order by the court, a copy thereof shall be certified by the clerk to the county board of elections.” Act of June 3, 1937, P.L. 1333, §504, 25 P.S. §2704.

Our review of the records in the instant appeals reveals the following chronology of events: notices of the proposed consolidations were posted on February 27, 1974, the petitions were filed on March 4, a hearing was begun on March 8, and the final orders consolidating the election districts were entered on March 11, 1974. The petition of the County Board of Elections is the foundation of all the subsequent proceedings. In re Division of the Fifth Ward of the City of Bethlehem, 31 North. 314 (Pa. C. P. 1948). Prior to the filing of such petition the court is without power to set a hearing date or to entertain objections to any consolidation proposal. In the present appeals the court considered the petitions for consolidation only four days after filing and final orders were entered only seven days after filing. This action was clearly in contravention of Section 504 of the Election Code. Our review of the transcript of the lower court hearing indicates that appellant, appellees, and the court were of the mistaken belief that February 27, the date notices were first posted, was the determinative date. This concordance is not constrictive of our power of review, however, since the limitations on the court’s power created by Section 504 are jurisdictional requirements and cannot be waived. Full compliance must appear of record. In re Division of the Fifth Ward of the City of Bethlehem, supra.

*612Accordingly we reiterate our order of May 9, 1974, that the orders below are reversed.

Mr. Justice Eagen and Mr. Justice Manderino concur in the result.