Appeals from judgment of Court of Common Pleas of Philadelphia County, June T., 1967, No. 2600, in case of Cecil B. Moore, Amos Harris, Michael Bolden et al. v. Maurice Osser, Thomas P. McHenry and Louis Menna.
Levy Anderson, First Deputy City Solicitor, with him Mansfield C. Neal and Frank J. Pfizenmayer, Assistant City Solicitors, and Edward G. Bauer, Jr., City Solicitor, for appellants.
David Berger, for appellants.
Oscar N. Gaskins, for appellee.
Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Eagen concurs in the result. Dissenting Opinion by Mr. Justice Musmanno. Dissenting Opinion by Mr. Justice Cohen.
Appellees, candidates of the Political Freedom Rights Party, filed nominating papers in Philadelphia for the offices of Mayor and several councilmen-at-large. These papers were rejected by appellants, the Philadelphia County Board of Elections, on June 30,
. Ten days later appellees brought a mandamus action in the Court of Common Pleas of Philadelphia County to compel the county commissioners to accept for filing the now contested nomination papers. The court below granted mandamus.*fn1
The issue before this Court, the proper construction of § 951(b) of the Pennsylvania Election Code of 1937,*fn2 is one of first impression.*fn3 In pertinent part, that section provides: "In the case of all . . . [non-state-wide] nominations, the number of qualified electors of the electoral district signing such nomination papers shall be at least equal to two per centum of the largest entire vote cast for any officer, except a judge of a court of record, elected at the last preceding election in said electoral district for which said nomination papers are to be filed, and shall be not less than the number of signers required for nomination petitions for party candidates for the same office."
In the 1963 Philadelphia municipal election the highest number of votes cast for a successful city-wide candidate was 401,966 for the office of mayor, two per cent of which is 8,039. In 1965, 331,133 votes were cast for district attorney, the most successful city-wide candidate, two per cent of which is 6,622. Although appellees' papers contained over 12,000 signatures,
the appellants insist that only 6,801 of these are valid. The issue thus posed is whether the "last preceding election", employed by § 951(b) as the base year, has reference to the 1963 election or the 1965 election in which the office of mayor was not contested. If the former, appellees' papers were ...