99 N.Y.S. 775 | N.Y. App. Div. | 1906
The application to the Special Term to strike the name of the appellant from the roll of registered voters for the general election to he held in Bovember, 1905, was made by the respondent, alleging that lie was an elector in the city and county of Bew York and that he was the State Superintendent of Elections for the m etropolitan elections district, duly appointed, qualified and acting, and as such was empowered by law to appoint deputies and empowered and charged by law with the duty of investigating and causing and directing said deputies to investigate all questions in relation to the registration of voters.
The respondent upon said papers asked for an order' to show cause why the name of the said appellant should not be stricken from the register, which order having been granted, upon the return thereof the Attorney-General read the petition and affidavits above referred to and rested. The attorney for the appellant made certain objections to the proceedings and moved that they be dismissed, which being denied, the appellant offered to prove by the oral testimony of appellant’s wife that the appellant was and had been absent from the city of Mew York for the past week; that a copy of the moving papers herein was during his absence received at his house through the mail, but had not reached the appellant for the reason that lie was too far away from Mew York on a business trip to be reached. He further offered to prove by her that the appellant was a duly qualified elector of the county of Mew York and entitled to vote from 318 West Forty-fourth street. The Attorney-General objected to the proposed evidence, not upon the ground that it was presented in the form of an offer, conceding for the purposes of the record that the facts stated would be testified to by the witness offered, but specifically objected under the provisions of section 31 of the Election Law to the court receiving the testimony. The objection was sustained, appellant excepting, and the court thereupon made an order directing tlie inspectors of elections of the said district to convene as a board of registration and strike the name of the appellant from the register. From that order this appeal is taken.
Section 31 of the Election Law, being chapter 909 of the Laws of 1890, as amended by .chapter 675 of the Laws of 1905, provides as follows: “§ 31. Adding and erasing names on register.— If
Until 1905 said provision as to adding and striking names from the registration lists was thé general law of the State, applicable to cities and villages alike. The striking of a name from the list was a judicial act and sufficient evidence of the facts establishing the improper registration of the proposed voter was required. In this department it had been held that an affidavit setting forth that the affiant had interviewed some" unnamed person at the address appearing upon the register of voters and had been informed that no person of the name registered resided at or was known at the said address, and that, therefore, the affiant upon information and belief
It is admitted upon this proceeding that the papers upon which the application was made fully comply with the provisions of the aforesaid amendment and that, if the said amendment is constitutional, the order appealed from was required by the statute. The sole question involved in this appeal is the constitutionality of said amendment, and although the said election has long since passed, and, therefore, our decision can have no effect upon the rights of the appellant at said election, both sides urge a consideration by this court of a public question vitally affecting the conduct of elections in the future.
Although in one sense academic, such considerations have moved
The Constitution of the State provides in section 1 of article 1 that “ no member of this State shall be disfranchised * * * unless by the law of the land * * Section 1 of article 2 provides what shall be the qualifications of electors. Section 4 of the same article provides as follows: “ Laws shall be made for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage hereby established and for the registration of voters, which registration shall be completed at least ten days before each election. Such registration shall not be required for town and village elections except by express provision of law. In cities and villages having five thousand inhabitants or more, according to the last .preceding State enumeration of inhabitants, voters shall be registered upon personal application only, but voters not residing in such cities or villages shall not be required to apply in person for registration at the first meeting of the officers having charge of the registry of voters.”
So that it appears by the organic law of the State that a differentiation is made as to the different parts of the State in the method of ascertaining the rights of citizens to exercise the franchise.
Under the provisions of the Constitution, and from time to time as necessity has arisen, laws have been passed by the Legislature for the purpose of insuring an honest vote and a fair count. In a great city containing at all times a large transient population the opportunity of fraud in elections, in the absence of legal restraint, is great. To such an extent was this realized that long prior to the passage of the general Election Law elections in the city of Hew
First. That it changes a rule of evidence prescribing what evidence of a fact shall be presumptive.
In Howard v. Moot (64 N. Y. 262) where, in regard to the title of a particular estate in land, chapter 19 of the Laws of 1821 authorized .the perpetuation of testimony under the direction of the chancellor of the State and made the same prima faoie evidence of the facts set forth in the examination of witnesses, the objections considered by the Court of Appeals were, first, that the Legislature had no power to authorize the testimony to be taken de bene esse without giving any adverse party the right to cross-examination ; and, secondly, the testimony as given in the deposition was mere hearsay and upon points on which hearsay evidence was incompetent. The court held that rules of evidence are at all times subject to modification and control by the Legislature, and changes thus made may be made applicable to existing causes of action, and that an act declaring any circumstance or any evidence, however slight, prima facie proof of a fact is valid. In Board of Commissioners of Excise v. Merchant (103 N. Y. 143) of section 12 of chapter 628 of the Laws of 1857, the Excise Act, which provided
In People v. Cannon (139 N. Y. 32) the act under consideration was chapter 377 of the Laws of 1887, as amended by chapter 181 of the Laws of 1888, the so-called Bottling Act. The portion of the act under consideration was that which provides that the having possession by any junk dealer or dealers in second-hand articles, of the kinds of marked bottles or kegs specified, without the written consent of the owner of such mark, should be presumptive evidence of the unlawful use and purchase of and traffic in such bottles. This was a criminal prosecution, and the appellants claimed that the provision above cited was unconstitutional as an invasion by the Legislature of the domain of the judicial branch of the government. The court held that the power to enact such a provision was founded upon the jurisdiction of the Legislature over rules of evidence, both in civil and criminal cases, and, citing many authorities in this and other States, held the act good.
So far then, ás the statute under consideration provides that cer
Second. The further point is taken that the rule of evidence is unconstitutional, because it does not apply to the whole State, but is confined to the metropolitan elections district. But in Howard v. Moot (64 N. Y. 262) the act provided for the taking of the testimony of three persons named therein in regard to the title of one estate. ¡Nothing could well be conceived as more restrictive than that, and yet the Court of Appeals found no objection thereto and declared the act constitutional. And in People v. Turner (117 N. Y. 227) the provision in regard to the effect of the conveyances on record as presumptive or conclusive evidence as the case might be, was especially confined to the fifteen counties of the State in and near the forest reserve, and the Court of Appeals held the act constitutional, and the Supreme Court of the United States likewise sustained it. (Turner v. New York, supra). The rule as to equality in the application of a law is well stated in Hayes v. Missouri (120 U. S. 68). In that case the plaintiff in error had been convicted of murder in the first degree, and upon his appeal to the Supreme Court of the United States he raised the point of the constitutionality of the Missouri statute which provided
That language of the court is especially appropriate to the matter now under consideration, because every one having to do with pub-
Third. But there is one provision of the statute which cannot stand; and, it seems to me, can be lopped off without affecting the rest of the statute. After providing what shall be presumptive evidence against the right of the elector to register from such premises, the statute proceeds —“ which may be rebutted only by the oral testimony under oath or affidavit of the elector whose name is sought to be stricken from the register.” Such provision is clearly bad. In Howard v. Moot (supra), holding the provision good which made the deposition prima facie, evidence, Judge Allen said: “It may be conceded * * * that a law that should make evidence conclusive which was not so necessarily in and of itself, and thus preclude the adverse party from showing the truth, would be void, as indirectly working a confiscation of property, or a destruction of vested rights; ” and in Board of Commissioners of Excise v. Merchant (supra), holding that the drinking of liquors in certain places was prima facie evidence that they were sold by the occupant, Judge Earl said: “A law which would practically shut out the evidence of a party and thus deny him' the opportunity for a trial, would substantially deprive him of due process of law. * * "x" So long as the Legislature in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense and to submit all the facts to the jury to be weighed by them upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds.” And in People v. Cannon (supra), holding the provision as to the
It is obvious that, to provide that the presumption arising from the affidavit of the deputy superintendent of elections could only be rebutted by .the oral testimony under oath or affidavit of the registered voter himself would be violative of the rights of said voter. He might be sick; he might be away; he might not have received the notice. The provision cannot stand.
As competent common-law evidence was offered to establish the registered voter’s right to remain upon the list and was rejected under a provision of the law which is unconstitutional and void, the order should be reversed.
O’Brien, P. J., Ingraham, McLaughlin and Houghton, JJ., concurred.-
Order reversed. Order filed.
See Laws of 1898, chap. 676, as amd. by Laws of 1905, chap, 689.— [Rep.
See Laws of 1898, chap. 676, § 6, as amd. by Laws of 1905, chap. 689.— [Rep.
See Laws of 1882, chap. 410, § 1839, et seq., as amd.—[Rep.