| N.Y. App. Div. | Aug 27, 1914
Lead Opinion
I have no doubt as to the power of the court to intervene to prevent the election of delegates to a constitutional convention, if such convention was not authorized by a vote of the people as required by the Constitution, and I think, upon competent proof by the plaintiff that such a constitutional convention was not authorized by the people as required by the Constitution, that the court would be authorized to restrain the election officers of the State from providing means for the election of delegates to a convention. But it seems to be conceded that the plaintiff failed to prove at the Special Term that a majority of the people actually voting on that question did not vote in favor of such a constitutional convention.
The only other question presented that requires discussion is whether this vote was taken in accordance with the mandate of the Constitution. It seems to be conceded that chapter 819 of the Laws of 1913, which provides for the taking of the vote on the first Tuesday of April, 1914, was complied with. The vote was duly canvassed, as required by statute, and from the statement of the vote it appeared that a total of 310,444 votes was cast, of which 153,222 votes were in favor of the proposition, and 151,969 votes were against it. The remaining votes of those attempting to vote were either blank or void. Of course, this canvass is prima facie evidence of the vote that was actually cast, and, as afore stated, the plaintiff failed to prove that the canvass was incorrect and that of the people who
Section 4 of article 2 of the Constitution provides: “Laws shall he made for ascertaining, by proper proofs, the citizens who shall he 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.” If the submission of the question to the people as to whether or not there should he a constitutional convention was an election within the meaning of this provision, then it seems to me clear that the Constitution was not complied with. There was no registration of voters for an election. What the statute authorized and what the officers did was to take the registry of voters for the general election of 1913 and treat that as the registry of voters, and on the second Saturday before the vote was to be taken this registry list was revised. This revision involved the adding to and striking from the registry of voters the names of voters who had moved into or out of the district, or who in' the meantime had become qualified or disqualified to vote. There was no registration of voters for an election, and, therefore, the question, it seems to me, is, whether this vote was an election within article 2 of the Constitution.
I am inclined to think such a vote was not an election within the meaning of this article. Section 1 of that article provides: “ Every male citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this State one year next preceeding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people; and upon all questions which may he submitted to the
This interpretation of the word “ election ” as used in section 4 of article 2 is further supported by the fact that section 1 of the same' article, which prescribes the qualification of voters, expressly provides that such qualification shall include the right to vote at an “election * * "x" for all officers that now are or hereafter may be elective by the people,” and also the right to vote “upon all questions which may be submitted to the vote of the people.” This is an express recognition of a distinction between an election and a mere referendum or expression of the will or desire of the people upon any given subject.
The election specified in this article would seem to refer to the general election whereby the electors of the State elect the
The question as to whether there should be a convention was submitted to the people under section 2 of article 14 of the Constitution, which provides: “At the general election to be held in the year one thousand nine hundred and sixteen, and every twentieth year thereafter, and also at such times as the Legislature may by law provide, the question ‘ Shall there be a convention to revise the Constitution and amend the same ? ’ shall be decided by the electors of the State; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every senate district of the State, as then organized, shall elect three delegates at the next ensuing general election at which members of the Assembly shall be chosen, and the electors of the State voting at the same election shall elect fifteen delegates-at-large.” There is nothing in this provision that requires the submission of this question to the people on an election day or at an election, nor is there anything in the section that restricts the Legislature as to the method by which that question be submitted. The election of delegates must be at the “next ensuing general election.” The section further provides that “Any proposed constitution or constitutional amendment which shall have been adopted by such convention, shall be submitted to a vote of the electors of the State at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the adjournment of such convention.”
In the short time that is available for discussion of this question, I have not been able to make an exhaustive examination of the authorities that would bear upon the question. So far as I can ascertain, the question has never been presented in this State. In Seaman v. Baughman (82 Iowa, 216" court="Iowa" date_filed="1891-02-06" href="https://app.midpage.ai/document/seaman-v-baughman-7104834?utm_source=webapp" opinion_id="7104834">82 Iowa, 216) the question whether a tax upon the property of a district township for the construction of a schoolhouse was an election within the meaning of a constitutional provision that required that all
Of course, only those entitled to the right of suffrage as established by article 2 could vote to determine that question, because it was to be decided by the electors of the State. But whether there was to be a registry of the voters to determine that question does not seem to be controlled by any provision of the Constitution. In other words, the meeting of electors to determine the question of the convention is not within section 4 of article 2 of the Constitution.
I think, therefore, the act of 1913 that provided for this vote by the people was constitutional and that the vote was taken in accordance with its provisions. Other questions were argued by the plaintiff, but we agree that upon the papers before the Special Term the court was not justified in interfering with the election of delegates to a constitutional convention thus authorized by a vote of the people.
It follows, therefore, that the order should be affirmed, with ten dollars costs and disbursements.
McLaughlin, J., concurred; Dowling, J., dissented.
Concurrence Opinion
I concur with Mr. Justice Seabury on all points considered in his opinion delivered at Special Term; but two points urged on this appeal by the learned counsel for the appellant are not considered in that opinion, and merit an expression of our views. Neither the act of the Legislature
I am of opinion that the Constitution does not require a special original registration for each election, and that it was clearly within the discretion of the Legislature to prescribe that there should he only one registration annually which should be used for all elections. That, in effect, is what it has done. It merely provided for correcting the then existing registration before the special election. If the void and blank ballots are to be counted in determining whether the majority of the electors voting on the proposition as to whether or not there should be a constitutional convention have decided in favor of the proposition, then concededly the proposition to hold a convention was not carried.
I am of opinion, however, that the provisions of section 2 of article 14 of the Constitution are to he construed as meaning the majority of the electors who have effectively voted for and against the proposition. It was not, I think, intended to authorize the voting of blank ballots by electors who could not decide whether they were in favor of or opposed to the proposition, and have such votes added to the votes against the
I, therefore, vote to affirm the order denying the injunction.
Dissenting Opinion
Article 2, section 4, of the Constitution of the State of Hew York requires that “ 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. ” The effect of this provision, it seems to me, is to render the late submission of the question of the holding of a constitutional convention invalid, for the reason that the act (Laws of 1913, chap. 819) providing for such submission did not provide for the registration of the voters of the State, in conformity with the constitutional
To hold that the action of the people, in voting upon a proposition submitted to them for action, does not come within the scope of an election would, it seems to me, not only encourage fraud, such as was practiced in this particular election, but would make such fraud immune from punishment, for section 764 of the Penal Law, defining the acts which constitute misdemeanors in relation to elections, expressly provides that it shall apply to general and special elections, municipal elections
I am also of the opinion that the meaning of article 2, section 4, of the Constitution is that ten full calendar days shall elapse between the completion of the registration and the date fixed for the holding of the election. As in this case the registration was not completed until ten o’clock on the evening of Saturday, March twenty-eighth, while the voting was to commence at sunrise on April seventh, ten full calendar days did not elapse, and this further constitutional requirement was not satisfied.
These two considerations impel me to dissent from the affirmance of the order appealed from and to vote for the reversal of the order and the granting of the injunction prayed for.
Order affirmed, with ten dollars costs and disbursements. Order to be settled on notice.
Concurrence Opinion
I concur with the learned presiding justice. The construction given to the word “ election,” as found in article 2 of the Constitution, does not require that the word shall be similarly defined and limited when used in criminal or other statutes which have for their object the purity of the ballot and its protection from fraud whenever, at the polls, the people seek to express themselves upon any question, whether it be in the' choice of candidates for office or on any other matter. In brief, I think the word “election” is susceptible of different constructions, according to “the subject-matter, and the context, the apparent policy and objects of the Legislature.” (State v. Hirsch, 125 Ind. 207" court="Ind." date_filed="1890-06-24" href="https://app.midpage.ai/document/state-v-hirsch-7050582?utm_source=webapp" opinion_id="7050582">125 Ind. 207, 213, quoting Endlich Interp. Stat. § 337.)