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In re Hart

47 N.Y.S. 445 Court N.Y. Sup. Ct. Decision date 1897-10-26 English

Delivered by GAYNOR, J.

Contents

Majority

p. 445
(21 Misc. Rep. 503.)
In re HART.
(Supreme Court, Special Term, Kings County.
October 26, 1897.)

Headnote

Elections—Ballots.
When more than one justice of the supreme court are to be elected, they are to be voted for indiscriminately for the full term, and no one of them can be designated as candidate for successor to any particular justice.
Application by Coleridge A. Hart for a mandamus to compel the secretary of state to certify to the board of elections of the city of Brooklyn that the certificates of nomination of the petitioner by the Prohibition party and an independent body named “Independent Citizens’ Organization” for justice .of the supreme court in the Second judicial district, filed in his office, are in words “to fill vacancy in place of Calvin E. Pratt, deceased.” The secretary of state certified the nomination of the petitioner, but omitted this designation. The contention is that as Calvin E. Pratt, a justice of the supreme court, died on August 3, 1896, the election of his successor at the general election on November 3, 1896, was void, for the reason that such election was “less than three months after the vacancy” occurred, in violation of section 4 of article 6 of the state constitution. Denied.
Coleridge A. Hart, in pro. per.
The Attorney General, opposed.

If the contention of the petitioner be true, that it is in order to elect two justices of the supreme court at the coming election in the Second judicial district, then every voter is free to vote for two justices, and the law will conclusively presume that he knows his rights in that particular, and that he will act and govern himself accordingly. People v. Village of Wappingers Falls, 9 Misc. Rep. 246 , 30 N. Y. S. 265 ; Id., 144 N. Y. 616 , 39 N. E. 641 . It would follow that the two candidates receiving the highest number of votes would be elected. The certificate by the secretary of state to the officials in each county and city who make up and print the ballots, that the petitioner was nominated to the office of justice of the supreme court, puts the petitioner upon the ballots as a candidate for justice of the supreme court on equal terms with all other nominees for that office. This is all he is entitled to. The designation in his certificates of nomination, that he was nominated “to fill a vacancy in place of Calvin E. Pratt, deceased,” was surplusage. There is no way under the law to so classify nominees for justice of the supreme

p. 446
court. When more than one are to be elected, they are voted tor indiscriminately for full terms, and those receiving the highest number of votes are elected. The election law provides for the designation upon the ballots of the particular term each candidate for the same office is running for only in cases where the several terms to be filled are of different length. However a vacancy arises in the office of justice of the supreme court, the election is always for a full term.

The application is therefore denied.

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