Fernbacher v. Roosevelt

35 N.Y.S. 898, 14 Misc. 199, 97 N.Y. Sup. Ct. 441, 70 N.Y. St. Rep. 575

Opinions

VAN BRUNT, P. J.

(orally). Necessarily, owing to the brief time that we have had for the consideration of the question which was presented on the argument this morning, what we can say in reference to the conclusion at which we have arrived must be of a somewhat desultory character, and we can only briefly outline the views to which we have all come upon an examination of the act before us.¹ There seems to have been at the foundation of this legislation a scheme that there should be some intelligent action upon the part of each and every voter, and it seems to have been attempted to enable such voter to exercise such intelligent action in as simple a manner as possible. As a consequence, the provision of the law was that there should be spread before the voter the names of the various persons for whom he was called upon to vote. He was to be allowed to vote a straight party ticket, he was to be allowed to vote a straight independent ticket, or he was to be allowed to vote an eclectic ticket, as he might see fit. And it would seem that the tendencies of the law had been to bring that possibility within the reach of each individual voter, and that, as was suggested by the counsel for the appellants, the idea of devices or emblems was resorted to for the purpose of enabling the illiterate voter to attain that end. It was for the protection of the illiterate voter that the emblem was resorted to, and to enable him to exercise his will, as far as he might be able to do, to vote for the candidates whom he might select. This idea is also evidenced by the fact that there is a provision in the act which limits each party to a single device. The provision in regard to the form of the ballot is:

“Every ballot intended for the use of electors, printed in accordance with the provisions of this act shall contain a party device for each party represented on the ticket. * :s There shall be provided at each polling place at each election but one form of ballot for all the candidates for public office and every ballot shall contain the names of all the candidates whose nomination for any office specified in the ballot have been duly made, and not withdrawn in accordance herewith, together with the title of the office, arranged in tickets or lists under the respective party or political or other designation certified. * * * The arrangement of the ballot shall in general, conform as nearly as practicable to the plan hereinafter given. The tickets or lists of candidates of the various parties shall be printed in parallel columns headed by the chosen devices, and the party name or other designation in such order as the secretary of state may direct, precedence however, being given to the party which polled the highest number of votes for the head of the ticket in the next preceding general election * *. The number of such columns shall exceed by one the number of sets of candidates to be voted for at the polling place for which the ballot is provided, nominated by different certificates of nomination, except as otherwise provided in this section.” Section 81.

Throughput this section there seems to be a recognition of the idea that there should be a single column for a single party, and a single device at the head of that column, so that the voter who desires to vote a straight ticket may vote the ticket under that column. We find also, when we come to the previsions of the law in respect to the filing of certificates of nomination, the same idea to. prevail. The certificates of nomination in regard to state* offices shall be filed with the secretary of state. The nominating authority shall file with the secretary of state an emblem which is to head the ticket, and, if such an emblem is not filed, then the secretary of state may select such an emblem; and the emblems or devices so chosen, when filed as aforesaid, shall be used to designate and distinguish all the candidates of the same political party or independent body. There would seem to be, therefore, an intention upon the part of the legislature that each party should be represented by a single emblem. That being the condition of the law, it seems necessarily to follow that, where a convention of a party has been regularly called, has made its nominations, has sent its certificate to the secretary of state containing the emblem of that party, that device controls, and must head the nominations of that party. There is a further provision of the statute which authorizes independent nominations to be made. It determines how these nominations shall be made, what shall be done, what shall be filed with the secretary of state as the evidence of such nomination, and what the secretary of state shall do in the case of such nomination. But those nominations are designated as “independent nominations.” They do not come under the head of the regular party nomination, whose convention has chosen the device under which the nominations of that convention are to be presented to the people. Undoubtedly, an independent party may nominate the same individuals, but they must nominate them as an independent party, place them under their device, and list them under their ticket. Such being the condition of the law, it would seem that it was necessary, in order for any independent organization or any person claiming the right for the presentation of a state ticket upon any ballot to be printed, that they must make the nominations in a manner conformable to the statute, and file a certificate with the secretary of state. Then the secretary of state certifies the nomination to the county officers,—in this county, the police commissioners; in other counties, the county clerk, and from them the county officers get the information or knowledge as to the state offices which have been put in nomination by the conventions or in the independent manner prescribed by the statute. In the case at bar, this procedure has not been followed. It appears that in all the other independent nominations they have been followed. They have made their nominations, either by convention or by certificate, and filed them with the secretary of state. The secretary of state has certified these nominations to the board of police commissioners, and the board of police commissioners get their knowledge as to these nominations from that certificate, and there is no means by which they can be afforded any legal knowledge whatever as to those nominations except from the certificate of the secretary of state.

As far as the State Democracy are concerned, they do not seem to have made any nominations for state offices. It is true, they have filed a certificate with the board oí police commissioners as to their local nominations, with a notice that they have indorsed certain state nominations. But they have not made any nominations in the manner prescribed by the statute, or filed any certificate with the secretary of state. Neither has the secretary of state certified to the board of police commissioners (from whom alone the police commissioners can get knowledge in regard to any state nominations) as to the fact of this faction having made any nominations for state offices whatever. That brings us to a consideration of the question in regard to the action of the board of police commissioners in reference to the form of the ballot. The statute provides that, as nearly as practicable, the ballot shall be printed in the form designated by the secretary of state. And the secretary of state has certified the nominations in the order in which they have been received by him, and in which they were entitled, by the provisions of the law, to be put upon the ballot. The police commissioners have ignored that certificate. There is no practical difficulty in the way of having one column here and one there, but they have absolutely ignored that certificate, and have adopted an order of their own. We cannot find any authority in the law for that. They have no discretion, except where it is impossible to follow out the order designated by the secretary of state.

There is much more that might be said in reference to this matter, and Mr. Justice Barrett will say a few words in regard to the decision of Mr. Justice Cullen, distinguishing the condition of the law which exists at the present time from that which existed in 1894. It is proper, however, that I should call attention to the claim that is made that the respondent had no standing in court. As we understand it, that is founded upon the provisions of section 65 of the act of 1895, which provides that a written objection to any certificate of nomination may be filed in the office in which the certificate is filed within three days after the filing of the certificate. It might be said, in the first instance, that, as far as these state officers were concerned, there has been no certificate of nomination filed, and consequently there was no necessity of any written objection. But, even if there had been an attempt to file a certificate, the provisions of section 65 were not exclusive. It depended upon what action the police commissioners took upon that certificate of nomination as to whether there was any necessity of intervention or not. Then, by the provisions of section 56, it is provided that the supreme court, or any justice thereof, within the judicial district, or any judge within his county, shall have summary jurisdiction, upon complaint of any citizen, to review the determination and acts of such officer.

Now, it is further objected that the respondent here has not shown any interest in this suit, and that courts are not trying moot questions. He is a citizen; consequently, presumably, a voter. He has an interest, if it were necessary, in having the law carried out in respect to the manner in which the election should be conducted. But that is not necessary. The statute has provided that upon the complaint of any citizen the court shall redress any wrong which may have been committed, whether as against himself or anybody else. This might be said to be analogous to the right conferred upon a taxpayer under certain circumstances. A taxpayer’s interest is infinitesimal. If he is aggrieved by some particular action of the corporation or its officers, it is to so small an extent that the court would not take notice of it as an individual grievance,' and never did until the taxpayer was given by authority of law the right to intervene. So here the citizen is given the right to intervene, and the court is bound to entertain his complaint, if any be made to it.

The order should be affirmed.

Footnotes

1

Laws 1895, c. 810.