People ex rel. Cohn v. Rice — 33 N.Y. St. Rep. 712

Majority

p. 712

The People ex rel. Ernest Cohn v. Frank Rice, Secretary of State.

(Supreme Court, Chambers, New York County,

Filed October, 1890.)

Headnote

Elections—Laws 1890. chap. 263, § 5—Nominations.

When a nomination is for an office to be voted for by voters of a district greater than a ct unty, but including a portion of the city of New York, the city of Brooklyn or the county of Kings, a cerlificate signed by one hundred voters is sufficient.

Motion for writ of mandamus.

John Pennel, for motion; Charles F. Tabor, attorney-general, opposed.

The only question involved in this application is a construction of § 5 of the ballot act of 1890. A certificate of nomination of one Frederick Bennett for representative in con

p. 713

gress 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 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 Now 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 voters 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.