Dissenting Opinion
Although for many years the conduct of the general elections had been minutely prescribed by law, prior to 1898 the internal affairs of political parties, the conduct of. primary elections, the qualifications of voters thereat, the election and appointment of governing committees, district, city, congressional, county and State, and the composition and conduct of political conventions were governed by party rules and customs and had not been put under control of statutory enactment. It is a matter of local political history that in consequence of this untrammelled party government, widespread discontent had caused agitation looking towards legislative intervention. The complaints were based upon the fact that as an official ballot had been provided by the State, which alone could be
The general scheme of the act, so far as enrollment was concerned, was to give every one an opportunity to enroll as a member of a party at the time that he registered as a voter for the general elections, ornan official roll kept in the city of New York by the board of elections, and to provide that the right of a duly qualified voter to enroll should depend solely upon his own will, subject to challenge at the time of the enrollment, the questions submitted upon the challenge being prescribed in this act as follows: “ Are you in general sympathy with the principles of the (naming it) party ? ” “ Do you declare that yon have not enrolled with, or participated in' the primary elections or conventions of, any other party since the first day of last year?” “Is it your intention to support generally at the next general election, State or National, the nominees of the (naming it) party for State or National offices ? ” This act provided for a special enrollment during the month of December, following the registration, by which a voter who had not 'enrolled could, by filing with the board of elections a statement embodying the necessary declaration as to his party sympathies and intentions, be placed upon the roll if registered as a voter. It also provided that if, after enrollment, -lie should -move into another election district between the first day of February and the thirtieth day before the annual primary day, except as therein provided,
This act was amended by chapter 111 of. the Laws of 19.03. The provisions allowing a special enrollment, or of a voter coming of age after the last preceding general election, or allowing, when a voter had moved from one election district into another, a transfer to a a new district, were repealed as to "cities containing a population of 1,000,000 or over, and it was expressly provided that “ In such cities no_ elector shall be permitted to enroll as a member of a party except at one of the four regular meetings for registration.”
Experience had demonstrated, as is usually the case in regard to novel remedial legislation intended to apply to existing conditions, that evils unanticipated had grown up thereunder. That tli.e opportunity given for special or supplemental enrollment and for change of enrollment consequent upon change of residence had not worked well. The individual’s right to participate in his party government, therefore, was by this act of 1903 fixed as of the regular registration days for the regular general election, and the roll as so fixed lasted for the ensuing political year and no one could be added 'thereto during said year.
But the roll so made permanent hi its turn gave opportunity for political manipulation and actual fraud, A roll made up in October of one year was to he used as the basis of the rights of the voters to participate in the primary election of September of the next year. The names once upon those rolls remained there whether the men ' whom the names represented were dead or alive or had removed from their election district or even from the State. It is a fact so well known that members of a court residing in this city may "take judicial notice of it, that a large portion of our population is
.Whereupon the Legislature attempted to remedy this evil. No one.can examine carefully and thoughtfully the acts of the Legislature from year to year, touching the elections in this great city, without being impressed by the constant effort to insure an honest election and a fair count. The ingenuity of the evaders of the laws passed With the purpose of procuring such a. result is illustrated by the successive acts attempting to meet the new devices of the election rogues as they coiné, to light.
In order to meet, this evil of a fixed official legalized primary roll made-one year, to be voted upon the next, 'to be upon which, alone, permits a person to exercise a. right of .primary franchise) and which during such lapse of time becomes not a .correct roll, but a roll Containing numbers óf names which cannot be lawfully voted upon, but which nevertheless are used to control the political affairs, of the party, the Legislature passed chapter 350 of the Laws of 1904 (adding to Primary Election Law, § 3, subd. 11),, applicable only to cities containing a population of 1,000,000 or over, and provided as follows: “If any '-statement in "the declaration of any person, >on tlie evidence of. which his name Was enrolled in the original enrollment book for any election district by the custodian of primary records, or if any entry opposite the name of. any person in such enrollment book is false, or if any person enrolled in such enrollment book has died, or has removed from or no longer resides in such election district, any • elector Of the
Under the provisions of said act, the applicant herein submitted his verified application setting forth that he was a citizen of the United States, of full age, a resident of the first Assembly district in .the county of New York’andthat lie was ,a duly qualified elector and an enrolled Republican, in said Assembly district; that the name of James O’Brien, appeared on the enrollment-book of. the sixteenth election district of the first Assembly district as one of the electors enrolled with the Republican party of the district and as there entitled to vote at the next primary election, and “ on information and belief the said elector is not qualified or entitled to vote in said election district at the next primary election-, the election for which' said enrollment, was made, for the following reasons, to. wit: Said elector is enrolled upon the said enrollment book as residing at hTo.
The functions of that board are purely ministerial in the premises. It was claimed in the court below, and is urged here, that the papers upon which the application was asked failed to provide that “sufficient evidence” required by the law to authorize the striking of the •name from the roll. In other words, that a positive affidavit by a person residing in the same house given as the address of the person proceeded against, that “ the above-named elector, James O’Brien, has removed from No. 9 Mulberry Street and does not now reside there, nor in said election district,” is destroyed by the further phrase, “His present address is unknown,” and that the tender regard of the court for the rights of the voter will not permit it to order his name stricken from the primary roll ipade up eleven months before, notwithstanding a resident of the same house swears that he
It seems to me that any such rulé destroys the law. The very purpose of the act is to meet, the exigencies of th’e crowded and migratory population of the city of Hew York. It is to reach people who have the: apparent right to vote and who have moved .since: they .enrolled, and who have gone no one knows where. It seems1 to me that enough was submitted to make out a prima facie case, and that where no one appears to complain, of a proposed or accomplished invasion of his rights of primary franchise, the court ought1 not, upon the opposition of a mere ministerial body, to indulge in such an over-refined analysis of the papers as in effect to judicially repeal-a proper, law passed by the 'Legislature to meet and remedy1 a known evil.
This court, in Matter of Morgan, In re Rolle (114 App. Div. 45), upheld chapter 675 of the Laws of 1905 (amdg. Election Law [Laws of 1896, chap. 909], § 31), which provided for the striking of an elector’s name from the registration list for a general election-upon the affidavit by the State Superintendent of Elections or any of liis deputies, when duly directed, that he had interrogated an: inmate, house-dweller, keeper, care-taker, owner, proprietor or l-andl; lord thereof as to said elector’s residence therein, and that the saidaffiant was informed by one or more of said persons (naming them) that they were , acquainted With and knew the persons residing, therein and that -the elector did -not reside in said premises thirty days before election, and made said affidavit presumptive evidence upon which an order could be made striking the name from the list.
In that case, an affidavit upon information of an inmate, etc., was: held to be sufficient to authorize an order to deprive the registered elector of his right to -vote at a general election. In' this case w& have the positive affidavit of an inmate of the house that the: enrolled elector has moved and does not reside in the election dis- ■ trict. -In my opinion-, that is enough, considering the conditions' that exist, the history of the Primary Election Law and the evils: aimed at, to warrant the -court? in the absence of any countervailing;
Although the election has long since passed, we have treated this case as other election cases have been treated, as a matter of suck general interest and importance that it ought to be passed upon.
For the foregoing reasons the order appealed from should be reversed and the application granted.
Ingraham, J., concurred.
Order affirmed. Order filed.
Lead Opinion
In this case the affidavit which asserts the facts positively shows that the elector whose name it is sought to strike from the enrollment book, enrolled from Ho. 9 Mulberry street, and that the affiant resides at that number, but it does not show whether it is a private house or boarding house or a tenement, or whether the affiant is the janitor, lessee or proprietor, or that he is in a position to know the facts. We are of opinion that the rule laid down in the opinion in Matter of Titus (117 App. Div. 621), argued and decided herewith, should be applied here, and that the order should be affirmed upon the authority of the decision in that matter.
Patterson, P. J., concurred; Clarke and Ingraham, J., dissented.
Concurrence Opinion
For the reasons stated in Matter of Titus I concur in result.