Fernbacher v. Roosevelt

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.

(orally). I concur, and will state briefly the grounds of my concurrence. The key to the solution of the main question here presented is the legislative intention with regard to the new device of a party emblem. Clearly, no state party can have more than one emblem. If that be so (and it is unquestioned), no state party can secure additional emblems through the accident of local dissensions. The state party’s emblem runs through the whole state, and covers the candidates nominated by its state convention. The policy of the law was to make the ballot clear, and to keep it within reasonable proportions by limiting each party to one emblem in one column on a single ballot. If the appellants’ contention be correct, emblems may be multiplied indefinitely in each county. The true construction of the act is that no local division of a state party can vary the emblem adopted by its state convention. Here the attempt necessarily is to vary that emblem. The State Democracy shows that it is a component part of the Democratic party. That being so, it is bound by the party device. The party authorities of the State Democracy cannot alter its party device or substitute another for it. Probably they would not have attempted to do so if they could use it as the means of combining the state ticket with their own local ticket. Practically they cannot do this because of the action of the state convention; and because they cannot do so they claim the right to vote for the party candidates at large under an emblem other than that chosen by the Democratic state convention. How, plainly, this cannot be. If it were permitted, it would destroy the whole system of single state party emblems and single state party columns. The members of the State Democracy are not deprived of their right to vote for the party candidates. They cannot do so quite as conveniently as those who vote a straight ticket; but, to illustrate from the facts before us, they can vote the “Star” generally and their own candidates specially, or they can vote their own emblem generally and the state candidates specially. Their grievance is that they cannot vote a single straight ticket for all the party candidates with their own emblem. But that grievance results from the division in the party, and from the recognition of their adversary by the state convention. It is thus inseparable from their attitude. We may assume that each local faction stands equally as a component part of the party. That very assumption

shows that both factions are bound by the state party emblem, and that neither of them can adopt another emblem,—I mean, another emblem under which to vote the Democratic state party ticket.

It comes back to the original proposition, that the state party can have but one emblem, and that, so far as the candidates of the state party are concerned, that emblem is controlling upon all the local factions within the party. Each local faction can have its own emblem only for its own local candidates. Such is clearly the meaning of the words, “the names of its candidates,” in section 56 of the act of 1895 (chapter 810). But for its state candidates it can have no emblem save that chosen by the state convention. Where there are several factions of the same party in the county, the state convention decides which faction shall have the advantage of regularity. Because of that regularity, one faction becomes entitled to the sole •use of the party emblem for its local candidates. Whatever disadvantage results to the opposite faction, so results from its lack of regularity. It is inevitable to the situation in which it is placed. It must suffer this disadvantage, rather than secure an advantage at the expense of the homogeneity of the system planned by the legislature. The party authorities of the State Democracy could have avoided this inconvenience by resorting to the statute as to independent nominations. In that case they might have had a straight ticket, consisting of these very state candidates and their own local candidates under one independent emblem. But, as they did not make either a party nomination (and they could not have done so without becoming a new party) or independent nominations, as in fact they rely upon their position as an integral part of the Democratic party, they cannot place the state candidates of their party under any emblem save that chosen by their state party convention. It seems to me that that is entirely clear.

My attention has been called to the opinion of Mr. Justice Cullen in Re Madden, 35 N. Y. Supp. 906 . I would entirely agree with this learned justice if the law were the same as that which was considered in Re Mitchell, 81 Hun, 401 , 30 N. Y. Supp. 962 . But, as we have seen, the act of 1895 is a radical departure from the previous ballot law. The crucial change in the present system is, not only the substitution of a single ballot for all the candidates, as observed by Mr. Justice Cullen, but the provision for a single emblem for such party, under which—and under which alone—the party ticket as such can be voted. It is true that the voter can now vote for that ticket in a variety of other ways, and under other party emblems, or under independent nomination emblems. But if he desires to vote for that ticket as such—that is, for the straight party ticket in the state— he must vote for it under that party’s lawfully chosen emblem. My conclusion is that throughout the length and breadth of the state the ticket of each party for state offices must be in a single column, and must be headed by such party’s chosen emblem. No local division of such party, regular or irregular, can, in its locality, choose for the party at large another or different emblem; nor certainly can any county clerk or board. Each local division can undoubtedly choose an independent emblem for its local candidates,—

meaning, of course, its local candidates as distinguished from its state candidates. For the latter it cannot choose an independent emblem. Its state candidates are the candidates of the party at large, and the choice of an emblem for that party is vested by law exclusively in the state convention. It follows that the board of police erred in giving to the Democratic party, as it has, an additional column on its proposed ballot, and an additional emblem. It also erred in varying the precedence given to the various party columns according to law by the secretary of state. For these reasons I concur that this order should be affirmed.