Ahern v. Elder

• Citation: 88 N.E. 1059,195 N.Y. 493
• Parties: AHERN v. ELDER et al.
• Decision Date: 18 June 1909
• Court: New York Court of Appeals

195 N.Y. 493

88 N.E. 1059

AHERN

v.ELDER et al.

Court of Appeals of New York.

June 18, 1909.

Appeal from Supreme Court, Appellate Division, First Department.

Mandamus by Frank T. Ahern against William Elder and others. From an order of the Appellate Division (115 N. Y. Supp. 1108), affirming an order denying the writ, relator appeals. Affirmed.Daniel F. Cohalan, for appellant.

Francis K. Pendleton, Corp. Counsel (Theodore Connoly, of counsel), for respondents.

WERNER, J.

The respondents are the inspectors of election in the fourth election district of the twenty-fifth assemblydistrict, in the county of New York, and the relator is an elector in that district. On the 10th day of October, 1908, which was one of the regular registration days fixed by statute, these inspectors of election convened as a board of registry at No. 99 Greenwich avenue, in the election district referred to, and the relator presented himself for registration. Upon the relator's request his name was placed upon the register, and he was asked certain questions touching his qualifications, which he truthfully answered, and which were correctly entered upon the register by the several members of the board. When the relator was asked to sign the public copy of the register, he declined to do so, and the board thereupon refused to register him. The relator then applied to the Supreme Court at Special Term for a peremptory writ of mandamus to compel the board to register him without his signature. The writ was refused, and upon appeal from the order entered upon that decision, there was a unanimous affirmance at the Appellate Division. The relator has now appealed to this court, and he asserts his right to a writ upon the ground that the statute, under which he was asked to sign the public copy of the election register, contravenes the provisions of the Constitution which prescribe the qualifications of electors.

That portion of our state Constitution which defines the qualifications of voters is contained in article 2. So much of the first section thereof as is germane to the question before us provides that: ‘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 preceding 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, * * * for all officers that now are or hereafter may be elected by the people; and upon all questions which may be submitted to the vote of the people. * * *’ The fourth section of the same article provides 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 or village elections except by express provision of law. In cities or 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 shall not be required to apply in person for registration at the first meeting of the officers having charge of the registry of voters.’

Pursuant to the last quoted section of the Constitution the Legislature enacted the election law (chapter 909, p. 893, Laws 1896), which has since been amended in various particulars. Among the amendments there are several contained in chapter 521, p. 1903, Laws 1908, which relate exclusively to cities of a million or more inhabitants, and under one of the amendments in this class it is provided that the registers of the inspectors shall contain various columns, the twentieth one of which ‘shall be reserved for the signature of the elector at the time of registration or in case the elector alleges his inability to write, for entering therein the number of the ‘identification statement for registration day’ made by such elector as hereinafter provided. Above each horizontal line in the said twentieth column shall be printed the words ‘The foregoing statements are true,’ and the elector shall at the time of registration sign his name by his own hand and without assistance, using an indelible pencil or ink below such words on the horizontal line in the register of electors designated as the public copy.' In a case where the elector cannot write, the inspector is required to ask him certain enumerated questions as to his name, parentage, occupation, present employment, whether married or single, place of residence, giving the details necessary for explicit identification, and when these questions have been answered by the elector and written down by the inspector, the latter is required to sign a certificate in the following form: ‘I certify that I have read to the above-named elector each of the foregoing questions and that I have truly recorded his answers as above to each of said questions.’ By section 3 of the same statute (chapter 521, p. 1903, Laws 1908) the election law (section 103) is further amended so as to require each poll clerk in election districts in cities of a million or more inhabitants to keep a pollbook, which each elector is required to sign before he receives a ballot. This signature is to be compared with the elector's signature in the inspector's register, and, if they correspond, the elector is given a ballot. If the elector cannot write, he is required to answer the same questions which were propounded to him when he registered, and for the purpose of identifying him, these answers are compared, and, if they correspond, the elector is given a ballot.

The constitutionality of these election statutes is attacked upon two grounds: (1) Because they contravene the provisions of sections 1 and 4, art. 2, of our state Constitution; (2) because the provisions of chapter 521, p. 1903, Laws 1908, so far as they apply specially to cities of a million or more of inbatitants, are contrary to the provisions of section 18, art. 3, of our state Constitution. The provisions of section 1, art. 2, of the Constitution, above quoted, define in general terms the qualifications of voters, and the provisions of section 4 of the same article impose upon the Legislature the duty of enacting laws for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage. Neither in the general election law, nor in the specific amendments of 1908, is there anything which violates these constitutional provisions. The command of the Constitution is that the Legislature shall enact such laws as may seem best calculated to ascertain whether persons who present themselves for the exercise of the right of suffrage possess the prescribed qualifications. If the law of 1908, or any part of the election law, had prescribed qualifications not to be found in the Constitution, the case would fall within the rule adopted by the court in Green v. Shumway, 39 N. Y. 418, where it was held that chapter 194, p. 286, Laws 1867, relating to the qualification of voters to elect delegates to a constitutional convention, was invalid because it prescribed a form of oath to be taken by the elector which added a qualification forbidden by the Constitution. This appeal presents an entirely different question. There is nothing in the Constitution to forbid the enactment of such a statute as the one under consideration. On the contrary, the general scope of the statute is such as to bring it within the express command of the Constitution, and the only question presented for our consideration is whether the particular statutory regulation complained of is reasonable. If it is reasonable, it is clearly...