Fernbacher v. Roosevelt — 70 N.Y. St. Rep. 575

Majority

p. 575

Nathan Fernbacher, Resp’t, v. Theodore Roosevelt et al., as Board of Police Commissioners, etc., App’lts.

(Supreme Court, General Term, First Department,

Filed November 15, 1895.)

Headnote

1. Elections—Ballots—Pabty emblem.

Where the convention of a party has been regularly called, has made its nominations and 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.

2. Same.

An independent party may nominate the same individuals, but it must nominate them as an independenl party, place them under its device, and list them under its ticket.

3. Same

Where the secretary of state has certified the nominations in the order in which they have been received by him, and in which they are entitled, by the provisions of the law to be put upon the ballot, the police commissioners cannot ignore that certificate.

4. Same.

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.

p. 576

5. Same.

The ticket of each party for state officers must be in a single column and headed by such party’s chosen emblem.

6. Same—Objection to ballots.

Section 65 of the election law, which provides that a written objection to any certificate of nomination may be filed in three days after the filing of such certificate, is not exclusive.

7. Same.

Section 56 of said act gives the proper courts summary jurisdiction, on the complaint of any citizen, to review the acts of the officer responsible for the printing of the ballots.

Appeal from an order, enjoining the police commissioners of the state of New York from printing names of candidates for state offices in any column upon the official ballot under the name or-emblem of .the “ New York State Democracy.”

The opinion of Mr. Justice Beach on granting the injunction is as follows:

The objections to plaintiff’s standing in court and the mode of procedure are not well taken. The law of 1895 (section 56) provides that “ any question arising with reference to any 'device or to the political party or other name designated in any certificate of nomination filed pursuant to the provisions of this section or of section 57 of this act with reference to the construction, validity, or legality of any such certificate, shall be determined in the first instance by the officer with whom such certificate, is filed. * * * The supreme court, or any justice thereof, within the judicial district, or any county judge within his county, shall have summary jurisdiction upon complaint of any-citizen to review the determination and acts of such officer, and to make such order in the premises as justice may require." The general terms and wide scope of this provision remove the procéeding outside the rules of pleading and practice "contained in the Code of Civil Procedure regulating actions and civil proceedings. The conclusion of the court or judge is here made known by an order, not judgment or decree, indicating that the legislature recognized the need for a simple and prompt remedy for alleged violations of the election law. .To conform with this "enactment, the moving party, a citizen, has presented to the court his complaint in the form of petition, claiming the action of the board of police commissioners to have been illegal, as evidenced by the resolution of said board passed October 16th inst. This resoluion directs the emblem or device of the New York State Democracy to be placed at the head of a column on the ballot, such column to contain the names of candidates for state offices nominated by the Democratic state convention, followed by the local ticket of the State Democracy. This action or decision relates both to a device and to the certificate of local nominations made by the State Democracy, and filed with the board of police commissioners, which certificate alone can serve as a foundation for their resolution. Section 65 of the act, providing for objections to certificates of nomination, is not restrictive of section 55 relating to the “ construction, .validity or legality ” of any certificate of nomination filed, but adds thereto,

p. 577

by providing that “ written objections” may be filed, and indicates the course of procedure thereon. But whether the board of police commissioners render a decision upon written objections, or, in their absence, upon any question within the scope of section 56, their action may be reviewed. The sections are neither consistent nor exclusivethe latter (section 65) relates to written objections and procedure when they are filed, and before decision has been rendered, while the former (section 56) gives the right to seek a review of their decision after rendition to any citizen upon application to a court or judge.

The plaintiff states a complaint in his petition proper for presentation, and the method chosen is unobjectionable. The main question set forth, briefly stated, is whether or not the board of police commissioners legally allotted by its resolution to the State Democracy a column on the ballot with its emblem, the column to iuclude names of candidates for state offices, or, as designated in the act, candidates to be voted for by the electors of the entire state. The question relates practically to the ballot and use thereon of the emblem or device in connection with state candidates. It is to be decided from the enactment of 1895, which, in the wisdom of the legislature, has provided a new form of single ballot, with specific provisions regulating its form and contents differing widely from prior statutes upon the subject Existent decisions of the courts give no guidance to a correct conclusion, except those bearing upon statutory construction. The present law enacts by mandatory sections rules applicable to state and local nominations. For state officers candidates must be nominated in one of two ways: First, by state convention ; second, by nominating certificate bearing the names of 3,000 electors. The results of state conventions, officially attested, and certificates of nomination, within specified periods, must be filed in the office of the secretary of state, and in each instance must specify a. device or emblem. By section 60 this official, upon expiration of the time for filing certificates of nomination, shall certify to the board of police commissioners the name, residence, and place of business, if any, of each candidate nominated in any certificate so filed for whom the voters may vote, the title of -the office for which he is nominated, the party or other political name specified in ■such certificate, and the emblem or device chosen to represent and distinguish the candidates of the political party or independent body making such nominations. By section 8Í it is further provided that the tickets or lists of candidates of the various parties shall pe printed in parallel columns, headed by the.chosen device and party name or other designation, in such order as the secretary of state shall direct. It is concluded from these provisions that the plain intent of the legislature, as to nominations and emblems for state candidates, was to restrict the contents of the ballot to those candidates whose names had been lawfully filed in the secretary of state’s office, and by him certified to, local officials, together with the emblems. This intention was wise, preventing confusion and doubt relative to nominations and emblems

p. 578

for state tickets. Were it otherwise, local conventions, by adopting a state ticket without its legal emblem, could multiply the ballot columns for an indefinite extent, tending to mislead the elector and nullify the legislative effort for simplicity of ballot and consequent intelligent exercise of. the voting franchise.

It appears in this proceeding that the secretary of state, in obedience to law, has duly certified the names of state candidates and the emblems as filed in his office, together with the order of position on the ballot, to the board of police commissioners. It also appe&rs that the board, in contravention and disregard o£ this certificate, purposes to devote a column in part to state candidates and emblem adopted by a local convention called, on behalf of the State Democracy, to name candidates for local offices,, and further to disturb the order of position on the ballot legally directed by the secretary of state. It is conceded that such organization has not held a state convention, and has not filed certificate or emblem in the secretary of state’s office. There is no authority, either expressed or implied, to be found in the statute giving the board of police commissioners the right or semblance of a right to reverse, affect, nullify, or interfere with the official action of the secretary or state, shown by his certificate. It is true that section 81, prescribing the form of official ballots, has no provision applicable in terms to local nominations by factional local conventions; but, even so, the omission cannot warrant an assumptipn of power by the board of police commissioners not given by statute, and subversive of the authorized action of the secretary of state. The board of police commissioners have acted erroneously in allowing to the State Democracy the use of an emblem over candidates for state offices. This action, in my opinion, should be reversed, and the local candidates of that organization (irregular by the judgment of party authorities) should be placed in a column, under their emblem, without the names of candidates for state offices appearing before them. The prayer of petitioner is granted. An order may be settled on notice of one day.

Francis M. Scott, counsel to the corporation, and Wallace Macfarlane,. of counsel for app’lts; Asa Bird Gardiner, David Leventritt, and Henry D. Hotchkiss, for resp’t.

(orally)—Necessarily, owing to the brief time that we have had for the consideration of the question which was presented on the argument this morning, what we can say in reference to the conclusion at which we have arrived must be of a somewhat desultory character, and we can only briefly outline the views to which we have all come upon an examination of the act before us. There seems to have been at the foundation of this legislation a scheme that there should be some intelligent action upon the part of each and every voter, and it seems to have been attempted to enable such voter to exercise such intelligent action in as simple a manner as possible. As a consequence, the provision of the law was that there should be spread before the voter the names of the various persons for whom he was called

p. 579

upon to vote. He was to be allowed to vote a straight party-ticket, he was to be allowed to vote a straight independent ticket, as he might see fit. And it would seem that the tendencies of the law had been to bring that possibility within the reach of each individual voter, and that, as was suggested by the counsel for the appellants, the idea of devices or emblems was resorted to for the purpose of enabling the illiterate voter to attain that end. It was for the protection of the illiterate voter that the emblem was resorted to, and enable him to exercise his will, as far as he might be able to do, to vote for the candidates whom he might select. This idea is also evidenced by the fact that there is a provision in the act which limits each party to a single device. The provision in regard to the form of the ballot is:

“ Every ballot intended for the use of electors, printed in accordance with the provisions of this act shall contain a party device for each party represented on the ticket. * * * There shall be provided at each polling place at each election but one form of ballot for all the candidates for public office and every ballot shall contain the names of all the candidates whose nomination for any office specified in the ballot have been duly made, and not withdrawn in accordance herewith, together with the title of the office, arranged in tickets or lists under the respective party or political or other designation certified. * * * The arrangement of the ballot shall in general, conform" as nearly as practicable to the plan hereinafter given. ■ The tickets or lists of candidates of the various parties shall be printed in parallel columns headed by the chosen devices, and the party name or other designation in such order as the secretary of state may direct, precedence however, being given to the party which polled the highest number of votes for the head of the ticket in the next preceding general election * * *. The number of such columns shall exceed by one the number of sets of candidates to be voted for at the polling place for which the ballot is provided, nominated by different certificates of nomination, except as otherwise provided in this section.” Section 81.

Throughout this section there seems to be a recognition of the idea that there should be a single column for a single party, and a single 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 provisions 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 secretory 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, there, 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

p. 580

party has been regularly called, has made its nominations, has sent its certificate to the secretary of state containing the era blem 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 of such nominations, what the secretary of state shall do in the case of such ndmi-. nation. But these 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 arc 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 the 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 óf 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 aEorded any legal knowledge whatever as to those nominations except from the certificate of the secretary of state.

As fiir 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 of 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 officers whatever. That brings us to a consider-' ation 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

Concurrence

p. 581

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 suph officer.

How, 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

p. 582

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 discussions. 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 apppellants’ contention be correct, emblems may be multiplied indefinitely in each county. The true coustruction 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 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. Now, plainly, this cannot be. If it were permitted, it would destroy the whole system of single party emblems and single state party columns. Tiie 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 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. Bach 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

p. 583

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 disavantage, 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 ease 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 . 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 Gull bn, 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 officers must be in a single column, and must be headed by such party’s chosen emblem. Ho 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 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.