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PEABODY v. TUCKER (04/20/72)

decided: April 20, 1972.

PEABODY, APPELLANT,
v.
TUCKER



Appeal from judgment of Commonwealth Court, No. 122 C.D., of 1972, in case of Endicott Peabody v. C. Delores Tucker.

COUNSEL

Henry T. Reath, with him Jane D. Elliott, Irving R. M. Panzer, Gerald S. Segal, and Duane, Morris & Heckscher, for appellant.

Lawrence T. Hoyle, Jr., Deputy Attorney General, with him Thomas J. Oravetz and Edward J. Weintraub, Deputy Attorney Generals, and J. Shane Creamer, Attorney General, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones and Mr. Justice Eagen dissent.

Author: Roberts

[ 447 Pa. Page 399]

Appellant Endicott Peabody filed a complaint in mandamus in the Commonwealth Court requesting that the Secretary of the Commonwealth be ordered to certify his name for inclusion on the official ballot of the Democratic Party as a candidate for Vice-President of the United States at the primary to be held on April 25, 1972. The Commonwealth Court, after hearing, entered judgment against appellant. Appellant thereupon appealed to this Court. On March 20, 1972, this Court issued an order affirming the judgment of the Commonwealth Court, and indicating that an opinion would follow.*fn1

[ 447 Pa. Page 400]

Though the Pennsylvania Election Code*fn2 specifically establishes a preferential primary for candidates for party nominations for the office of President of the United States, the Election Code, as appellant concedes,*fn3 makes no specific provision for a preferential primary for candidates for the office of Vice-President of the United States. Nevertheless, appellant contends that the Pennsylvania Election Code can and should be construed to provide for a Vice-Presidential preferential primary. We disagree. We believe that the Legislature did not intend to establish a Vice-Presidential preferential primary, and we recognize that we cannot substitute our judgment on this matter for that of the Legislature. Accordingly, we affirm the judgment of the Commonwealth Court.

In our view Section 902 of the Election Code*fn4 clearly indicates that the Legislature did not intend to provide for a Vice-Presidential primary. That section expressly provides for a Presidential preferential primary, but makes no mention of a Vice-Presidential primary. The section states:

"CANDIDATES TO BE NOMINATED AND PARTY OFFICERS TO BE ELECTED AT PRIMARIES.

"All candidates of political parties, as defined in Section 801 of this act, for the offices of United States Senator, Representative in Congress and for all other elective public offices within this State, except that of presidential electors, shall be nominated, and party delegates and alternate delegates, committeemen and officers who, under the provisions of Article VIII of this act or under the party rules, are required to be

[ 447 Pa. Page 401]

    elected by the party electors, shall be elected at primaries held in accordance with the provisions of this act, except as otherwise provided in this act. In the years when candidates for the office of President of the United States are to be nominated, every registered and enrolled member of a political party shall have the opportunity at the Spring primary in such years to vote his preference for one person to be the candidate of his political party for President." (Emphasis added.) We cannot believe that the Legislature, having expressly established a Presidential preferential primary, intended by the same act to establish a Vice-Presidential preferential primary by implication. Moreover, at least six other sections of the Election Code -- sections dealing with notice to the county boards of offices for which nominations are to be made,*fn5 filing of nominating petitions,*fn6 affidavits of candidates,*fn7 number of signers ...


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