In re Hamilton — 62 N.Y. St. Rep. 377

Majority

p. 377

In the Matter of Cassius A. Hamilton et al.

(Supreme Court, General Term, Third Department,

Filed September 27, 1894.)

Headnote

Election of officers—Registry list.

Upon an application under § 37, chap. 680 of 1892, to have name of voter stricken from the registry list, the judge can only compel the hoard of inspectors to perform its ministerial duty, and cannot pass upon the right of such person to he registered and to vote.

Appeal from orders compelling the board of inspectors to strike out certain names from registry of voters.

Everett Caldwell, for app’lts ; Henry A. Peclcham,, for resp’ts.

On the 4th day of November, 1892, a justice of this court made four separate orders, each separately relating to one of the four persons whose names were ordered to be stricken from the registry of voters, which orders were, with the exception of the name stricken from the registry, in the following form:

“ In the Supreme Court.

“In the Matter of the Registration of Cassius A. Hamilton in the First Election District in the Town of Canton, as a voter.

“Application having been made to me for an order directing the name of Cassius A. Hamilton to be stricken from the list or register of voters of the first election district of the town of Canton, in the county of St. Lawrence, for the general election to be held November 8, 1892 :. Upon reading the duly verified application of Nelson L. Robinson, and the affidavits of Nelson L. Robinson and Isaac M. Atwood, the certificate of the board of inspectors of said election district as to the proceedings in said matter before it, said proceedings and annual catalogue of St. Lawrence University for 1891-92 in support thereof, and that affidavits of Cassius A. Hamilton, George R. Hardie, Charles Y. Fullington, Fred Birney, Van Ornum, Frank N. Cleveland, James H. Christie, and after hearing Henry A. Peckham, Esq., for Ledyard P. Hale, Esq., opposing such application, I do hereby order and direct Frank N. Cleveland and Benjamin F. Cleflin and Sylvester N. Judd, constituting the board of inspectors for the registry of voters in and for said election district for said election, to strike from such list or register of voters in and for said election district for said election the name of Cassius A. Hamilton.”

From such orders each of the persons whose names were stricken from the registration of voters appeals, and as all of the appeals involve the same question they have been argued together. The learned judge who granted the orders from which the appeals are taken wrote no opinion ; and we have no means,

p. 378

further than we may gather from the statute under which the application to him was made, of determining what his construction of § 37 of chapter 680 of the Laws of 1892 was. The manifest effect, however, of the orders made by him, was to establish the doctrine that a judge, upon a summary application under the provisions of that section, may determine the right of the citizen to register and vote, upon the facts and law, without regard to the question of conformance on his part, or on the part of the board of registration, with the formal requirement of the statute regulating the registration of voters. As the board of registration act only ministerially in receiving and registering the name of the voter, and must therefore register all who conform in their application for registration to the formal requirements of law, People ex rel. Stapleton v. Bell, 119 N. Y. 175 ; 28 St. Rep. 960 , and must refuse registration to any who may fail in such conformation, it is only when such board fail in the discharge of such ministerial duty that the judge, under the provisions of the act of 1892, supra, •can compel by order the performance of such ministerial duty. The orders of the judge from which these appeals were taken went much further in their effects, and assumed to pass upon the legal right of these appellants to be registered and to vote; and, while it may have correctly determined that question, its effect •was too far reaching in its consequences to be determined in so summary a manner, and we do not think that that question was properly before the judge for determination. In People v. Bell, supra, it was held that a board of inspectors of election has no discretionary power to reject the vote of a person who, upon the application of the statutory test, has shown himself to be a qualified voter, and that the lawfulness of a vote cannot be determined until it has been received, and the elector’s right cannot be annulled without a trial. Tested by this rule, we think the orders of the judge directing the inspectors to strike these'names from the list of registry of voters were erroneous, and must be reversed.

Orders reversed, with ten dollars costs and printing disbursements. Putnam, J., concurs in the result.

Cases cited

People ex rel. Stapleton v. Bell 119 N. Y. 175 N.Y. 1889-01-28 p. 378