Original jurisdiction in case of Endicott Peabody v. C. Delores Tucker, as Secretary of the Commonwealth of Pennsylvania.
Henry T. Reath, with him Duane, Morris & Heckscher. Of counsel, Irving R. M. Panzer and Gerald S. Segal, for plaintiff.
Lawrence T. Hoyle, Jr., with him Edward J. Weintraub and Thomas J. Oravetz, Deputy Attorneys General, and J. Shane Creamer, Attorney General, for defendant.
President Judge Bowman and Judges Crumlish, Jr., Wilkinson, Jr., and Rogers. Dissenting Opinion by Judge Wilkinson.
[4 Pa. Commw. 609 Page 610]
Endicott Peabody, a registered voter of the State of Massachusetts and a person possessing the constitutionally prescribed qualifications to be Vice President of the United States, desires to have his name placed upon the official ballot of the Democratic Party as a candidate for that office at the primary to be held in this State on April 25, 1972. To that end he has caused to be prepared and tendered to the defendant, C. Delores Tucker, Secretary of the Commonwealth, nomination petitions meeting all the formal requirements of the Pennsylvania Election Code, Act of June 3, 1937, P.L. 1333, Art. I, § 101, 25 P.S. § 2601, together with a filing fee. The defendant refused to accept the petitions and filing fee on the ground that the law of Pennsylvania fails to provide for acceptance of nomination petitions for the office of Vice President of the United States. Thereupon Mr. Peabody brought this suit in mandamus seeking a writ directing the defendant to
[4 Pa. Commw. 609 Page 611]
accept the plaintiff's petitions and filing fee and to certify his name on the primary ballot.
We have conducted a hearing. The facts hereinbefore recited were admitted into evidence and the parties have agreed that our order should be the final judgment of this court on the merits.
As Americans are early taught, persons aspiring to be President and Vice President of the United States are not nominated for those offices by vote of the members of their political parties but by delegates to National Conventions of their parties, chosen in accordance with the rules of their parties. In former times the parties chose their candidates for all offices pursuant to party rules and the general electorate chose as public officers persons offered by political parties. The primary election was a latter day device provided by statute with the purpose of democratizing the choice of public officers by diminishing the power of the political party in caucus and enlarging the rights of the party electorate. Its success has been such that it deservedly keeps company with such other miracles of governmental invention as Marbury v. Madison*fn1 and the 16th Amendment to the Constitution of our country. Inevitably, candidates for our only National offices, the Presidency and Vice Presidency, will one day be chosen by party members at primary elections. We are not there yet.
However, the Pennsylvania Legislature has provided for the expression by members of political parties of their preference for a person to be the candidate of their respective parties for the office of President. Mr. Peabody contends that we may and should construe the statutes of Pennsylvania as similarly authorizing a Vice Presidential preferential primary. We are unable to do so.
[4 Pa. Commw. 609 Page 612]
The statutory provisions to which the plaintiff directs our attention are all contained in the Pennsylvania ...