People ex rel. Bohm v. Rice — 25 Abb. N. Cas. 460

Majority

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PEOPLE ex rel. BOHM v. RICE.

N. Y. Supreme Court, First District, Chambers ;

October, 1890.

Headnote

^Elections; ballot reform act; independent nomination ; number of signers.~\ Under section 5 of the ballot act of 1890 (c. 269,) providing that a certificate for the nomination of an office to be filled by the voters of a district less than a State, greater than a county, or by the voters of a county or city, shall be signed by at least two hundred and fifty voters, but further providing that when the nomination is for an office, “ to be filled wholly or in part by the voters of only a portion of the city and county of New York,” less than the whole, the number of signers shall not be less than one hundred, a nomination for representative in Congress for the 14th congressional district, which includes a part of the city and county of New York, and a part of Westchester county, is sufficient if signed by one hundred voters only.

Motion for a peremptory writ of mandamus.

The relator, Ernest Bohm, secretary of the Socialist Labor Party, applied for a mandamus to require Frank Bice, •secretary of the State of Hew York, to place on file in his -office the certificate of nomination of Frederick Bennett for representative in Congress for the Fourteenth Congressional District of this State, and to certify to the county clerks of

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Westchester and of the city and county of New York respectively, the name of said Bennett, candidate for representative, as required by L. 1890, c. 262, § 9.

The material facts, and the pertinent provisions of the, statute, appear in the opinion.

John Fennel, for the relator and the motion.

Charles F. Tabor, attorney-general, for the respondent,, opposed.

The only question involved in this application is a construction of section 5 of the Ballot Act of 1890. A certificate of nomination of one Frederick Bennett tor representative in Congress for the Fourteenth Congressional District, signed by upwards of one hundred voters residing in the district, was sent to the respondent to be filed, but was returned to the relator, on the ground that under the section of the ballot act before mentioned at least two hundred and fifty voters had to sign the certificate.

The Fourteenth Congressional District comprised the whole of the county of Westchester and the Twenty-fourth Assembly District of the city of New York.

The section requires that a nomination shall be signed by at least two hundred and fifty voters when the nomination is for an office to be filled by the voters of a district less than the State, greater than a county, or by the voters of a county or city.

This provision would include the nomination in question, were it not for a subsequent clause of the section. It is there provided, “When the nomination is for an office to be filled wholly or in part by the voters of only a portion of said city and county of New York, or the said county of Kings, or the said city of Brooklyn, less than the whole,, such number shall not be less than one hundred.”

The language here used is exceedingly involved and the meaning obscure, but a- careful examination has satisfied me

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that the nomination in question is included within the provisions above cited.

The nomination is certainly for an office to be filled “ in part by the voters of a portion of said city and county of New York.” The portion of New York that is included within the district for which the member of Congress is -elected, may be small in comparison with the rest of the district, and it is certainly remarkable that if Westchester •county alone constituted the Congressional District, two hundred and fifty votes would be required to nominate a -candidate, when if to Westchester county there is added a part of' the city of New York, one hundred voters would suffice. Still, the law so provides, and all we have to do is to ascertain the intention of the legislature and give effect '.to such intention.

The motion must, therefore, be granted.