In re Duffy

125 A.D. 406, 109 N.Y.S. 979, 1908 N.Y. App. Div. LEXIS 2797

Opinions

Scott, J.:

This is an appeal from an order denying a motion to strike the name of Stephen J. Dufiy from the enrollment book for the year 1907 for the fifth election district of the fifteenth assembly district in the county of New York. The motion is made under the authority of chapter 350 of the Laws of 1904 (adding to Primary Election Law, § 3, subd. 11), and the ground upon which it is made is that Dufliy had been enrolled with the Democratic party upon the enrollment book for the year 1906 and, therefore, could not be legally enrolled as a member of the Republican party for the year 1907. The Legislature has prescribed with great care and particularity the method to be followed by an elector in order to become enrolled in a political party, and thus become entitled to participate in it.s primary elections and conventions, the evident purpose being to afford full facility for every member of a party who desires to do so to participate in the government of the party; in shaping its policies and in nominating its candidates, and at the same time to prevent, so far as is possible, any successful attempt on the part of members of one party to intrude upon, or participate in, or influence or control the primaries and conventions of another party. To this end elaborate provisions have been made for the enrollment of electors in the party of their choice, for limiting their right of participation in primaries and committees to those who are thus enrolled, and for preventing any elector from enrolling in more than one party in any political year. The method by which an elector thus becomes enrolled is provided for by chapter 473 of the Laws of 1899, as amended,* which amended chapter 179 of the Laws of 1898. It is made the duty of the custodian of primary records (in the city of Mew York the board of elections) to cause to be erected, before the first day of registration in each year, at least two voting booths in each place of registration, said booths to remain during the four regular days of registration. They are also required to provide in each place of registration a ballot box, and enrollment blanks, in the form prescribed by statute, and enrollment envelopes. Each voter, as he registers, is given an enrollment blank and an envelope, and if he desires to be enrolled in any party, he retires to a booth, marks the enrollment blank in an appropriate circle provided for that purpose, incloses the blank in the envelope, which he seals and, after his name has been endorsed thereon by an inspector of election, deposits in the ballot box. A number is placed opposite his name on the registration books, and the enrollment books, and the same number is printed upon his enrollment blank and envelope, so that when the envelopes are opened, a comparison of the number on the envelope and the blank with the number opposite the name on the registration or enrollment books Axes the identity of the elector, and the mark upon the inclosed blank indicates the party with which he desires to enroll. The ballot boxes containing the enrollment envelopes and blanks remain unopened until the Tuesday following the next succeeding day of general election. The boxes and the envelopes are then opened and the blanks examined and there is set opposite the name of each elector, in the enrollment books, the party designated by him upon the enrollment blank. This must be done before the succeeding fifteenth day of February. The enrollment books thus made up go into effect on the first day of January following the days of registration on which they were begun and remain in force until the first of the following January when they are superseded by new books. In portions of the State other than in cities containing a million inhabitants or over, and cities of the second class, names may under certain circumstances be added to the enrollment. Only electors thus enrolled may participate in the primary elections of their party. The enrollment blank to be marked by each voter desiring to be enrolled is in the form of a declaration by him, in the following words: “I,......, who have placed a mark underneath the party emblem hereunder of my choice, do solemnly declare that I have this day registered as a voter for the next ensuing election, and that I am a qualified voter of the election district in which I have so registered, and that my residence address is as stated by me at the time I so registered; that I am in general sympathy with the principles of the party which I have designated by my mark hereunder; that it is my intention to support generally at the next general election, state or national, the nominees of such party for state or national offices; and that I have not enrolled with or participated in any primary election or convention of any other party since the first day of last year?

The point of the present controversy turns upon the meaning to be given to the words “since the first day of last year.” The appellant contends that the reference is to the previous calendar year, so that when an elector upon a registration day in October, 1907, declared that he had not enrolled “ since the first day of last year” he must be taken to mean that he had not marked and deposited an enrollment blank since the 1st day of January, 1906; hence, it is said that when Duffy on one of the registration days in 1907 mai'ked and deposited an enrollment blank declaring that he had not enrolled in any party, other than the Republican, since the first day of last year, he made a false declaration because it is admitted that on the days of registration in 1906 he marked and deposited a similar blank wherein he declared his adherence to the Democratic party, and was in consequence an enrolled member of that party during the year 1907. It is obvious and is frankly conceded that if this be the true construction of the statute, if any elector becomes dissatisfied with the party to which he has theretofore adhered, and desires to change his adherence to another party, he must undergo a locus %>mnitenti(R of at least one full year during which he may not be enrolled as a member of or participate in any way in the government of either party. We do not understand this to be the intention of the law, and we do not find it necessary to so construe it. The Primary Election Law recognizes in the fullest way, as does also the General Election Law (Laws of 1896, chap. 909, as amd.) the existence of parties as political organizations with enrolled electorates, and officers and committees chosen by and from the electors. They are not to be close corporations selecting their own members, but any elector is entitled to become an enrolled member of any party, and to participate in its government providing he complies with the statutory tests which consist only of his own declaration as to his political sympathies and intentions. It is clearly to the advantage of the Commonwealth that the electors generally should interest themselves in and participate in the management of the political parties to which they severally adhere, and if an elector’s own opinion change, or the party to which he has adhered deserts or departs from the political principles by which he was attracted to it, it is not the policy of the law to place obstacles in the way of a change of adherence to a party with which he finds himself in sympathy. The Primary Election Law provides for an annual enrollment, and that a person having enrolled in one party for any year, may not during that same year become enrolled in another party. This, while forbidding a double enrollment of the same person, clearly contemplates that the list of enrolled members may change from year to year. By this means, while a reasonable opportunity is given to an elector to change his political adherence, yet an obstacle is erected in the way of any attempt on the part of the members of one party to assume control of the management of the other. The political or enrollment year is made to extend from January first to January first, and although the necessary preliminaries of marking the enrollment statements, examining the statements so signed, entering the names of their chosen parties opposite the names of the several electors must of necessity be done before, or shortly after, January first, the enrollment does not become complete and effective, that is to say, the elector does not become enrolled until January first. The .marking of the enrollment blank is but one step towards the enrollment, and although actually marked in October, it should, as we consider, be treated as if made on January first, the day on which it became effective. When, therefore, Duffy marked the declaration that he had not enrolled with or participated in any primary election or convention of any other party since the first day of last year, he must be considered as intending to speak as of the 1st day of January, 1908, the first day of the enrollment year, and the day upon which he actually became enrolled as a Eepublican. Thus considered his statement was not untruthful for it does not appear that he participated in any Democratic primary or convention during the calendar year of 1907.

The order appealed from must be affirmed.

Patterson, P. J., Laughlin and Houghton, JJ., concurred.

Footnotes

*

The provisions mentioned in the opinion may he found in the Primary Election Law, §§ 2, 3, as amd. by Laws of 1899, chap. 473 ; Laws of 1900, chap. 225; Laws of 1905, chap. 674; Laws of 1906, chap. 227, and Laws of 1907, chap. 744, and in the Election Law (Laws of 1896, chap. 909), §§ 86, 87, as amd. by Laws of 1905, chap. 643; Id. § 30, as amd. by Laws of 1905, chap. 675.— [Rep.