52 N.Y.S. 898 | N.Y. Sup. Ct. | 1896
I have reached the conclusion that this application should be denied, but as it was not made until the last day of the term, and an immediate decision has been requested by the counsel for the relator, and as at least a hundred motions, previously argued, require my early attention, I can only state the grounds for such conclusion briefly.
1. A writ of mandamus is not a proper or allowable remedy in this case. What the relator asks is, not that the court will compel the respondents to do something, but that it will restrain them from do
2. It has been repeatedly held that a single judge ought not to declare an act of the legislature unconstitutional, unless a case is presented in which there can be no rational doubt, and I do not think that this is such a case. The application of this rule is especially called for in a proceeding like this, where it is sought to have very important provisions of the election law declared unconstitutional, and where, as was stated upon the argument, the legislature persisted in adopting these provisions, although the objection that they would be unconstitutional was presented to it, and where, if the court should be mistaken, and such provisions should eventually be held to be constitutional, the inspectors of election, if they should obey the writ, would be liable, under section 41 of the Penal Code, to three years’ imprisonment, or to a fine of $3,000, or to both.
3. I do not think it is by any means clear that the provisions of the election law above referred to are unconstitutional. In the first place, it is doubtful whether the last clause of section 5, art. 2, of the constitution, consisting of the words, “provided that secrecy in voting be preserved,” qualify the preceding word “ballot,” or whether they do not apply solely to the preceding phrase, “or by such other method as may be prescribed by law.” In Pearson v. Board (Va.) 21 S. E. 483, it was said that “the vote by ballot ex vi termini implies a secret ballot”; and, if this statement is correct, there was no occasion for the makers of our constitution to provide that elections should be by ballot, “provided that secrecy in voting be preserved” (article 2, § 5); but there was occasion for providing that, when elections were not held by ballot, but “in such other method' as may be prescribed by law,” secrecy in voting should be preserved. In the second place, whether the words, “provided that secrecy in voting be preserved,” do or do not qualify the preceding word “ballot,” and assuming that the voting is to be by “secret’5, ballot, it by no means follows that the provisions of the election law above referred to are unconstitutional. Section 5, art. 2, of the constitution, must be read in connection with section 1, of the same article, and, if possible, full effect must be given to both. Under the latter section the illiterate man has a right to vote, but under the former he must vote by “secret” ballot.
The learned counsel for the relator insist that voting by “secret’5, ballot and the proviso in said section 5 that secrecy in voting shall be preserved imply that the ballot shall be cast in such a manner that no one but the voter shall know for whom the ballot is cast.
The questions involved in this application received very full consideration in the case of Pearson v. Board, supra. The state of Virginia had adopted an election law based upon the “Australian system,” and a most determined effort was made to have it declared invalid. An action was brought to restrain a board of supervisors from paying certain expenses of an election held under this law, which, it was claimed, violated the constitutions of the United States and of the state of Virginia in many respects. Among other things, this law authorized certain election officers to appoint special constables, whose duty it was to prepare ballots for the illiterate and those who were physically incapable of preparing their own ballots. This provision was assailed on the ground that it authorized an interference with the “secrecy of the ballot,” and therefore violated the constitution of Virginia, which provided that elections should be by ballot, though it does not appear from the case that such constitution contained any provision like the last clause of section 5 of article 2 of our own constitution. The lower court dismissed the bill, and the supreme court of appeals of Virginia, composed of five judges, affirmed the decision. Keith, J., who delivered the opinion of the court, said:
“The vote by ballot ex vi termini implies a secret ballot. The secrecy of the ballot is a right which inheres in the voter, and of which he cannot, against his will, be lawfully deprived. It must be, however, in some degree subordinate to the right to vote by ballot, of which it is but a part, and the main object, which is the right to vote, must not be defeated by a too rigid observance of the incidental right, which is that of secrecy.”
The whole subject of “secrecy in voting” and the “secret ballot,” and the power of the legislature to interfere with such “secrecy,” were considered at length, and the statute was upheld.
This case was hotly contested,' and was decided as lately as April, 1895, and is an authority against the contention of the counsel for the relator. If the word “ballot,” in section 5 of article 2 of our
