In re Herman — 96 N.Y.S. 144

Majority

p. 144

(108 App. Div. 335)

In re HERMAN.

(Supreme Court, Appellate Division, First Department.

November 2, 1905.)

Headnote

1. Elections—Nomination by Petition—Objections—Time to Determine.

The statute providing that the final order by the board oí elections on the validity of petitions for nominations to public "office must be made on or before the last day for filing the certificates of nominations is directory, and the hoard, when not unnecessarily delaying the matter, may after the time stated hear and determine objections to petitions for nominations.

2. Same—Number of Electors.

A petition for the nomination of a candidate for alderman in the city of New York need not contain more than 100 names.

p. 145

3. Same—Qualifications of Electors.

A nonregistered voter may sign a petition for the nomination of a candidate for a public office, though the statute uses the words “voter" and “legally qualified voter or elector.”

4. Same—Number of Electors.

A petition for the nomination of a candidate for justice of the Municipal Court in the city of New York need not be signed by more than 500 names; the office of justice being a “municipal office,” within the-statute requiring that candidates for public office other than for “municipal offices’’ can only be nominated by petition containing 1,000 names.

5. Same—Disqualification of Electors.

A person taking part in a party primary is not for that reason alone disqualified from signing a petition for the nomination of an independent candidate.

Appeal from Special Term.

Proceedings by Moses Herman and others to review the action of the board of elections of the city of New York in determining objections to petitions for nominations to public office. From an order of the court at Special Term, the aggrieved parties appeal.

Affirmed.

The following is the opinion of Justice Stover at Special Term.

A number of proceedings have been brought for the purpose of reviewing the actions of the board of elections, and have been argued by counsel in groups, cases presenting the same question being presented together, and have so been considered. It is first objected that the board had no authority to decide objections after midnight of October 23d. The statute provides that the final order in the premises must be made on or before the last day for filing the-certificate of nomination, which is at least 15 days before the election, if filed with the board of elections of the city of New York. The papers upon this application show that the board of elections did not complete their examination of objections until after midnight of the 23d, which was the fifteenth day before election, and the decisions upon the objections were made at about 4 a. m. on the morning of the 24th; the board being in sessions during the day and night of the 23d. There is no claim made that the board bad intentionally delayed the proceeding; but, upon the contrary, it is quite apparent that the board had diligently endeavored to discharge its duties. The application in the cases brought to the court was speedily made and submitted on the 25th, being the earliest time that the matter could be brought before the court after the decision of the board of elections. It was held in Matter of Hennessy, 164 N. Y., at page 396, 58 N. E., at page 447, that the direction of the statute as to time was directory, and not mandatory; and within the authority and reasoning of that case these applications are properly before the court. It would seem that any other holding would prevent in many eases a review by the court, and place it within the power of a board of elections to entirely defeat the object of the statute by withholding a decision until midnight of the fifteenth day before the election." Until some controlling authority is cited I am not prepared to make a ruling involving such consequences. This objection goes to all of the cases under consideration.

Other questions are raised in particular cases calling for a construction of the statute. The first of these is as to the number of signatures required to nominate an alderman. It is claimed on behalf of some of the objectors that 500 signatures are necessary to the nomination of an alderman. Some of the certificates have less than 500. I feel controlled by the decision in the case of Behrmann, affirmed in 168 N. Y., 367 , 61 N. E. 283 . The opinion of the Appellate Division may be found in 65 App. Div. 11 , 72 N. Y. Supp. 293 . Until this case is overruled it is binding upon the Special Term, and therefore-it is not necessary that the petition should contain more than 100 names.

Objection is also made that the signers upon some of the petitions are not registered voters. I do not think it was the intention of the statute to require that an elector or voter should be registered in order, to join in a certificate of independent nomination. And while the words “voter” and “legally-

p. 146

qualified voter or elector” are used in different places it may be fairly said to embrace a legally qualified voter. Without necessarily including his registry at the particular election, he must be legally qualified as an elector or voter at general and special elections within his district. But if he should neglect to register, and does not think that that is a qualification of an elector as used in the Constitution and fundamental statute of the state, and unless it would clearly appear that a statute regulating the conduct of elections intended to go to the disqualification of any particular elector or class of electors, such regulation ought not to limit the constitutional right of a voter. The statute was intended for the orderly conduct of elections, and not for the purpose of preventing citizens discharging their ordinary duties: It should be so construed as to permit such voters and electors as are recognized by the Constitution to take part in all the preliminaries of an election, and it is not necessary that he should declare his intention to vote at the election, or that he should actually intend to vote. It follows, therefore, that the objection to those signers that were not registered is not well taken.

One of the petitions seeks to place in nomination a justice of the Mu«nicipal Court, and does not contain the names of 1,000 electors' of the district, but does contain the names of 500 electors. The statute requires that candidates for public office other than for municipal offices to he voted for in a district less than the whole state, but greater than a town or ward of a city, can only be made by 1,000 electors of the district. I think the office of justice of the Municipal Court is a municipal office, and is embraced under the clause which requires 500 electors on the certificate for nomination. I-Iis title is that of a municipal officer. I-Iis jurisdiction is limited to the municipally, and his entire duties are performed within the municipal territory. His compensation is paid by the city, and there is no indication anywhere of other than municipal duties to be performed by him. I think it may properly be held that he is a municipal officer.

Another objection urged is that some of the parties who have signed the independent certificate have voted at one of the party primaries; the conclusion being that one who has voted at a party primary is disqualified from thereafter joining any independent movement or taking part in independent nominations. I do not think that this was the intent of the statute. A party ' may, without violating any of the provisions of the statute, take part in a party caucus, and, if dissatisfied with the result, or upon changing his mind for any reasons, or without assigning any reasons, thereafter join an independent movement and support an independent candidate at the polls. The widest latitude is given the voter, and he is at liberty to change his views at any time before his ballot is cast. And so he may at any time change his mind as to his party adherence and take part in the nomination of independent candidates. There is no suggestion of actual fraud, but the objection rests solely upon the fact that having taken part in a party primary he has signed an independent certificate. I think the objection is not well taken.

It is objected that the board has no power to act on nominations filed after October 18th, and that sufficient notice was not given to candidates of the objections. This involves to some extent the original objection as to the jurisdiction, but I think the statute is broad enough to confer upon the court power to entertain the proceeding and to make such order as may be proper under the circumstances. It is quite true, perhaps, that sufficient notice was not given to candidates to answer objections; but I have upon this application given the fullest opportunity to obtain the true facts to the end that no one may he deprived of his rights. The application is summary, and necessarily must he disposed of in time to permit the board to perform its further duties. But I have in each case considered the objection and all of the papers submitted, with a view of as far as possible protecting each individual in his rights.

In the case of the nomination of Freidel for member of assembly and Silverstone for the office of alderman in the Eighth aldermanic and assembly districts of the city, an examination of the certificate filed, it seems to me, shows upon the face of it such irregularity as to render it illegal. I have endeavored to separate the valid and invalid portions of it, in order, if pos

p. 147

sible, to sustain the certificate; but I find it impossible to do so. It seems to he so grossly irregular as to render the whole certificate ineffective for any purpose.

I have thus covered the general propositions of law involved upon the application, and, except where I have been satisfied that the board passed upon the questions -of fact without having all the facts before it, and where they have been supplied on this hearing, or where it is apparent upon the face of the papers that they acted upon an erroneous view of the law, as above stated, I have not interfered with their action. But in such cases I have endeavored to make such order as would protect the rights of the parties and conserve the public interests.

Argued before O’BRIEN, P. J., and McRAUGHLIN, PATTERSON, CEARKE, and LAUGHLIN, JJ.

Henry W. Taft, for appellant.

Theodore Connoly, for respondent.

For the reasons assigned by the justice sitting at Special Term, the order appealed from should be affirmed.

Cases cited

People ex rel. Behrman v. Voorhis 65 App. Div. 11 N.Y. App. Div. 1901-10-21 at 72 p. 145