People ex rel. Moscowitz v. Voorhis

84 N.Y.S. 848 | N.Y. Sup. Ct. | 1903

Clarke, J.

This is one of several hundred applications made to the court for the issuance of a writ of mandamus-directed to the board of elections to strike from the enrollment-books, made up and preserved according to the provisions of the Primary Election Law, the names of citizens enrolled as Bepublicans, upon the ground that they are not now- qualified electors in the districts where enrolled. Section 1 of the act, chapter 473 of the Laws of 1899, as amended, provides: “ Section 1. Short title and application of act.—The short title of this act shall be‘The Primary Election Law.’ Except as otherwise herein provided, it shall be controlling (1) on the methods of enrolling the voters of a party in citiés and villages, etc. (2) On primary elections in such, cities and villages.” It provides minutely for party, enrollments to be made at the time of the registration for the general election by the elector indicating his party preference by appropriately marking an enrollment blank and depositing said blank in a sealed envelope with the board of registration. Such blanks so sealed are to be delivered to the custodian of primary record's—in this city the board of elections — and are not to be opened until the Tuesday following the general election. They are then to be opened by the custodian, and party, enrollment-books are to be made up which, for the year ensuing, serve as the enrollment for the party primaries, and only electors duly enrolled can vote at such party primaries. As originally passed, the law provided for a supplemental enrollment, but by chapter 111 of the Laws of 1903, this provision was abrogated in cities containing a population of one million or over, “ and 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.” Also in cities less than those containing one million inhabitants he has a right, if he moves from one district to another within a specified period, to have his enrollment altered to the new district. This has also been repealed as to Hew York. There is, therefore, now no way under the statute in this city of changing the enrollment during the year to conform to the habits of our to some extent shifting population nor to correct the roll by striking therefrom the names of • dead men. The roll is permanent for a year, and intended to be so, as the Legislature, in its wisdom, repealed the provisions above alluded to so far as they affected this city. Section 11 of the act, “Jurisdiction of and review by the courts,” provides: “Any action or neglect of the officers or members of a political convention or committee or of any inspector of primary election, or of any public officer, or board, with regard to the right of any person to participate in a primary election * * * or to enroll with any party, or with regard to any right given to, or duty prescribed for, any elector, political .committee, political convention, officer or board, by this act, shall he reviewable by the appropriate remedy of mandamus or certiorari, as the case may require. In addition thereto, 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 such action or neglect.” There is no warrant in said section for the relief here demanded. The board of elections have neither acted nor neglected to act in the premises, so that there is nothing to review. Having no duty to perform, what are they to be ordered to do? Their duty is to safely keep the enrollment as made up, and deliver to the. primary inspectors appropriate and correct copies at the proper time. They have no power of revision, change or correction. The enrollment is fixed by the status of the elector when he enrolled. That he has moved or died in the interim may make the roll now ineorrect, but there is no charge that it was not correct when made. The power of the court is given by statute and confined by statute. It can review action and mandamus to cure neglect. But the board only acted when it made up the enrollment, and as to that, when once made, the board became fundus oficio. Section 31' of the General Election Law ia invoked. But that applies only to general or special elections — not to primary contests. It applies to registration. As to primaries the term is enrollment. I conclude that the Primary Election Law is complete and exclusive, and section 31 of the earlier statute may not be read into it. Furthermore, there is a complete remedy for the evil, if- evil there be. Full, right of challenge is given, and the elector can vote if, and only if, upon oath or affirmation he answers the prescribed questions as to name, identity and residence in the affirmative and in accordance with his enrollment. And false swearing and illegal voting carry their appropriate remedies. The Legislature is the place to urge defects in the law. The court must interpret it as he finds it.

Motion denied.