#### Krull et al. v. City and County of Philadelphia et al.

*Thomas Raeburn White,*for plaintiff.

*Abraham L. Freedman,*city solicitor, and *Harvey Levin,*deputy to the city solicitor, for defendants.

March 4, 1955.

Kun, P. J.,

The bill in this case was filed by plaintiff taxpayers to enjoin the expenditure of public funds for the printing of ballots and *182other election material for use at the primary election to be held on May 18, 1955, and the general election to be held on November 8, 1955, on the ground that the so-called party-raiding provisions of the Election Code of June 3, 1937, P. L. 1333, as amended by the Act of July 5, 1947, P. L. 1358, are unconstitutional. The challenged provisions of the code are sections 634, 910, 951, 976, 979, 980 and 1406, 25 PS §§2784, 2870, 2911, 2936, 2939, 2940 and 3156.

The underlying contention of plaintiffs is that the legislation attacked constitutes an unreasonable restriction of the right of voters to nominate anyone they choose for public office, whether on one or more political parties. The acts limit nominations to one political party. The constitutionality of this legislation was sustained in Wilson v. Philadelphia et ah, 319 Pa. 47. The rationale of the decision is found in the statement of the court, at page 49, as follows:

“The constitution does not specify what rights are guaranteed the people in respect to the exercise of the franchise other than to provide that ‘elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.’ The act in question does not conflict in any manner with this clause. The voters are deprived of no opportunity to elect a particular individual to office, for even though the members of one party are unable to vote for him at the primary because the candidate has filed with another party, they are still at liberty to cast their ballots for him at the general election.”

The constitutionality of the legislation was assumed much later in the Magazzu Election Case, 355 Pa. 196, in which the court said at page 197:

> “The provisions in the acts against filing nominating petitions of more than one political party for the *183same office is popularly known as ‘Anti-Party Raiding Legislation.’ The obvious purpose was to avoid the practice of one political faction dominating *both*political parties in the primaries.”

Similar legislation has been sustained in many other jurisdictions unnecessary here to cite.

Plaintiffs contend that since that decision the Supreme Court of the United States, in United States v. Classic, 313 U. S. 299, has indicated that such legislation is unconstitutional. We do not so read the case. What was there decided was that the election laws of the State could not be so executed as to deprive Negroes of the right to participate in congressional primaries. There was nothing indicated in that case that a State could not make reasonable regulations for the conduct of primaries or elections as long as the ultimate exercise of the right of suffrage was not restricted or limited. Plaintiffs argue strongly that the legislation attacked prevents fusion of political parties, and further, that to deprive voters of the right to nominate a candidate upon any ticket which may attract votes, which the candidate would not receive on another ticket, is an interference with the freedom of nominations, and since nominations are a step in elections, it is an interference with the freedom of elections. However persuasive this contention may be considered, the question was specifically ruled to the contrary in the Wilson case, supra. We are bound by that decision and must follow it. Accordingly, the court enters the following

*Decree*

And now, March 4,1955, plaintiffs’ bill is dismissed. Plaintiffs to pay costs.