35 N.Y.S. 898 | N.Y. Sup. Ct. | 1895
Lead Opinion
(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.
“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. * :s 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the names of all the candidates whose nomination for any office specified in the ballot have been duly made, and not withdrawn in accordance herewith, together with the title of the office, arranged in tickets or lists under the respective party or political or other designation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.
Throughput 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
As far as the State Democracy are concerned, they do not seem to have made any nominations for state offices. It is true, they
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 such officer.
Now, 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
The order should be affirmed.
Laws 1895, c. 810.
Concurrence Opinion
(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 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 dissensions. 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 appellants’ contention be correct, emblems may be multiplied indefinitely in each county. The true construction 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 not 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. How, plainly, this cannot be. If it were permitted, it would destroy the whole system of single state party emblems and single state party columns. The 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
It comes back to the original proposition, that 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. Each 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 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 disadvantage, 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 case 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, 30 N. Y. Supp. 962. 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 Cullen, 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 offices must be in a single column, and must be headed by such party’s chosen emblem. No 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,—