Majority
p. 627People ex rel. Wallace v. Ryan, Town-Clerk. (Supreme Court, General Term, Second Department. July 2, 1891.) Argued before Barnard, P. J., and Pratt, J.
Headnote
.Emotions and Voters—Nominations—Printing Ballots.Under Laws N. Y. 1890, o. 262, which provides that all ballots to be used in any election for public office shall be printed at the public expense, and that any assemblage of voters or delegates representing a political party which, at the last election before the convention, polled at least 1 per cent, of the entire vote cast, may make nomination to public office, tickets containing the names of persons nominated by a convention pursuant to “a call for a meeting of Republicans” will be ordered printed at the public expense, and it cannot be objected that the convention did not represent the Republican party.
Appeal from special term, Westchester county.
Application by Robert Wallace for mandamus to compel Thomas S. Ryan, as town-clerk of the town of Westchester, to print and distribute ballots containing the names of persons nominated as Republican candidates for town •offices. The affidavit on which the application was based alleged that certain persons duly posted and published a call for “a meeting of Republicans * * * for the purpose of electing delegates who will select a town committee, and transact any other business that may come before the committee;” that at the time and place specified in the call a primary or convention was held, and delegates were duly elected; that afterwards the delegates met in convention, and made nomination for the various town offices; that the certificate of nomination was duly filed with the town-clerk, who accepted the same, and placed it in the safe in his office; that deponent is informed •and believes that certain persons filed objections to the ticket, and that the the town-clerk is about to refuse to print the tickets containing the names of the candidates so nominated; and that there is no other Republican ticket in the field, and that the application was made merely to defeat the election of the persons nominated. A peremptory writ of mandamus was granted, and •defendant appeals. Laws N. Y. 1890, c. 262, § 1, provides that all ballots to be used in elections for public office shall be printed at the public expense. Section 2 is as follows: “Any convention or primary meeting, as hereinafter defined, held for the purpose of making nominations to public office, and also voters to the number hereinafter specified, may nominate candidates for public office to be filled by election within the state. A convention or primary meeting, within the meaning of this act, is an organized assemblage of voters or delegates representing a political party which, at the last election before the holding of such convention or primary meeting, polled at least one per centum of the entire vote east in the state, county, or other division or district for which the nomination is made. A committee appointed by any such convention or primary meeting may also make nominations to public office when authorized to do so by resolution duly passed by the convention or meeting at which such committee was appointed.” Sections 3 and 4 pro vide for ■making and filing certificates of nomination.
H. C. Henderson, for appellant. David H. Hunt, for respondent.
The papers showed that a convention was held in the town of Westchester on the 20th of March, 1891. There was a call for a primary meeting of Republicans of the town publicly posted on the 7th of
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March, 1891. A ticket was nominated, duly certified, and filed with the town-clerk. Objections were filed to the ticket, and the relator testifies that the town-clerk was about to refuse to print the ticket. The town-clerk admits the filing of the ticket, and that objections were made to it, but that he will hot refuse to print the ticket “if he decides the objections are not well founded; that he had sent notices to the persons named on the ticket objected to; and that he is ready and willing to decide, after reasonable opportunity is given to the parties interested to be heard.” The only objection to the ticket is that it was made by an irregular body, and was not a nomination of the regular Republican, party. The peremptory writ was properly granted. By section 18, c. 2(32, Laws 1890, the clerk is excused from passing upon the objections if an order shall be made by a court of competent jurisdiction on or before Wednesday preceding the election. The object of the law was not that the town-clerk should made the order upon the objection before the court could make an order. This would defeat the law in some instances. The clerk might delay his decision until it was too late to print the ticket. The objection taken was entirely frivolous. No matter what the body of voters may have called themselves, if a ticket was nominated and filed according to law, the clerk should print the ticket for the popular vote. The judgment is affirmed, with costs.