Appeal, No. 96, March T., 1954, from judgment of Court of Common Pleas of Allegheny County, Jan. T., 1954, No. 3398, in re Appeal of Samuel A. James etc. Judgment reversed.
L. Kenneth Harkins, with him Harry S. Kalson, for appellant.
Craig T. Stockdale, with him Harry E. Richter, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE MUSMANNO
Subsection 1003 (e) of the Pennsylvania Election Code, 1937, June 3, P.L. 1333 Art. X, 25 P.S. Section 2963, provides for write-in or sticker votes as follows: "... There shall also be left at the end of each group of candidates for each other office... as many blank spaces as there are persons to be voted for such office, in which space the elector may insert the name of any person or persons whose name is not printed on the ballot as a candidate for such office."
Samuel A. James, Democratic candidate for Council, received 26 sticker votes in the 2nd District and 125 sticker votes in the 3rd District of the Borough of Whitaker. These votes, together with the votes cast and counted in the conventional manner, were sufficient to elect him to the office for which he was nominated. Theodore Rushe, a Republican nominee, who trailed James by some 100 votes, challenged James' election, asserting that his 151 sticker votes were void because James' name already appeared in printed form on the ballot and that, therefore, he could not be a beneficiary of the provision permitting sticker votes.
It appears that, in anticipation of the general November election, Samuel A. James and John W. Race, Jr., both successful in the Democratic primary, joined with two other independent candidates, Jacob W. Fox and Joseph A. Adams, and prepared stickers bearing these four names, with an X already printed against each name. The affixing of the sticker to the ballot thus automatically gave each of the four men a vote, provided no other X appeared on the ballot.
The losing candidate Rushe argues that since James' name already had a place on the ballot, there was no need to supply it with a sticker. This is true. However, if James chose to run with a group of three other
candidates, no extant law prevented him from doing so.
One of the contested ballots (introduced in the court below as an exhibit) has the ...