Hopper v. Britt

• Decision Date: 10 October 1911
• Citation: 96 N.E. 371,203 N.Y. 144
• Parties: HOPPER v. BRITT et al., Board of Elections of City of New York.
• Court: New York Court of Appeals Court of Appeals

203 N.Y. 144

96 N.E. 371

HOPPER

v.BRITT et al., Board of Elections of City of New York.

Court of Appeals of New York.

Oct. 10, 1911.

Appeal from Supreme Court, Appellate Division, First Department.

In the matter of the application of John J. Hopper against J. Gabriel Britt and others, constituting the Board of Elections of the City of New York, for a peremptory writ of mandamus. From an order of the Appellate Division (131 N. Y. Supp. 135) reversing as a matter of law an order of the Special Term directing the issuance of a peremptory writ, relator appeals. Order reversed, and order of the Special Term affirmed as modified.

Herbert R. Limburg, A. S. Gilbert, and Albert S. Bard, for appellant.

Abram I. Elkus, D-Cady Herrick, and Archibald R. Watson, Corp. Counsel (Terence Farley, of counsel), for respondents.

CULLEN, C. J.

This appeal presents a single issue-the constitutionality and validity of certain provisions of an act of the Legislature of this year (chapter 649, Laws 1911) entitled ‘An act to amend the election law generally.’ In this state for some years in the conduct of elections we have had the official ballot. Under the various statutes prescribing the form and character of that ballot, every political party that cast at the preceding election 10,000 votes for Governor is entitled to a column on the ballot in which are placed the names of its nominees for the various offices to be filled by election. In the caption of the column is the name of the party and also any emblem that it may select to designate it. Further provision is made for independent nominations; that is to say, any body of electors may by certificate place in nomination for offices any persons they choose, and select a party name and party emblem. Such independentnominations are given a column or part of a column as may be requisite, together with a caption giving the name and emblem adopted by the body, the same as in the case of nominations by political parties. For such independent nominations, if the nominees are candidates for state offices, 6,000 or more voters are required to execute the certificate. If for municipal offices, 2,000 in cities of the first class, 1,000 in those of the second class, and 500 in those of the third. Finally, there is a blank column containing no names of candidates, in which the elector may write the name of any person whom he chooses. Prior to the legislation under review, a voter might by a cross-mark in the circle at the head of any column vote for all of the nominees contained in such column, and, if he chose to vote for some other person for any particular office, he might make a similar mark opposite the name of that person, if such name was printed on the ballot; or, if not, write the name in the blank column. Physically disabled or illiterate voters, unable to read the ballot, are entitled to assistance in preparing their votes. A narration of further details is unnecessary for the disposition of this case.

It will be seen by this statement that the names of various candidates if placed in nomination by more than one political party or independent body would appear on the ballot in more than one place. By the statute of this year it has been enacted that: ‘If any person shall have been nominated by more than one political party or independent body for the same office, his name shall be printed but once upon the ballot, and shall appear in the party column of the party nominating him which appears first upon said ballot, unless the said candidate shall by a certificate in writing duly signed and acknowledged by him request the custodian of primary records to print his name in the column of some other party or independent body which shall have nominated him, in which event his name shall be printed in such other column only. * * * When the same person has been nominated for the same office to be filled at the election, by more than one party or independent body, the title of such office shall be printed in the columns where his name is not printed, and underneath such title shall be printed in brevier capital type the words ‘See column,’ the blank space to contain the name of the party column in which his name is printed, excepting that if any independent body shall have nominated only the candidates of the other party or independent body, no separate column for the independent body in which the candidates' names do not appear shall be printed upon the ballot .' Section 12. The relator contends that the statute is unconstitutional as unjustly discriminating between electors in the facilities afforded them for casting their respective votes, because, where candidates are nominated by two or more organizations, they can receive the ‘straight vote’ of the electors of but one organization, while those affiliated with the other organizations which have placed them in nomination are compelled to seek other columns on the ballot referred to only by name, and there make the necessary additional marks, thus tending to confuse the electors and defeat their intention to vote for all the nominees of their organization. The Special Term of the Supreme Court held these provisions of the statute bad and granted a writ of mandamus to the election officers commanding the preparation and issue of the ballots in accordance with the old form. The Appellate Division has, by a divided court, reversed this order and denied the application as a matter of law, and not in the exercise of discretion.

[1] In the consideration of the question before us, we are not unmindful of the principle that, before a court should declare a statute of the Legislature invalid, it must be clearly shown that the statute is irreconcilable with the Constitution; nor do we fail to appreciate the hesitationwith which courts should hold enactments of the Legislature void. It may be true, as urged by the learned counsel for the respondents, that at the present day some courts are disposed to invade the constitutional prerogatives of a co-ordinate branch of the government by regarding what they believe to be the spirit of the Constitution, rather than its express mandates. But necessarily in all Constitutions or other instruments there are certain propositions which the instruments import, as well as those they expressly and in terms assert.

[2] Therefore it is well settled that legislation contravening what the Constitution necessarily implies is void equally with the legislation contravening its express commands. A notable instance of this is the right to condemn private property. Our Constitution has never expressly forbidden taking private property for private use, but only prescribes that, ‘Nor shall private property be taken for public use without just compensation.’ Article 1, § 6. Yet the courts early held that this necessarily excluded the right to take such property for private use, with or without compensation (Matter of Albany Street, 11 Wend. 149, 25 Am. Dec. 618), a doctrine which has been steadily adhered to (Taylor v. Porter, 4 Hill, 140, 40 Am. Dec. 274;Matter of Ryers, 72 N. Y. 1, 28 Am. Rep. 88). The only provision of the federal Constitution on the subject which affects the power of the states is that contained in the fourteenth amendment, that no state shall deprive any person of property without due process of law. It was said by the Supreme Court of the United States in Madisonville Traction Company v. St. Bernard Mining Company, 196 U. S. 239, 251, 25 Sup. Ct. 251, 256 (49 L. Ed. 462): ‘There ought not to be any dispute at this day in reference to the principles which must control in all cases of the condemnation of private property for public purposes. It is fundamental in American jurisprudence that private property cannot be taken by the government, national or state, except for purposes which are of a public character, although such taking be accompanied by compensation to the owner. That principle, this court has said, grows out of the essential nature of all free governments.’

The qualifications of voters are prescribed by section 1 of article 2 of the Constitution, and those qualifications are exclusive. By section 5 of the same article it is provided that: ‘All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other methods as may be prescribed by law, provided that secrecy in voting be preserved.’ By section 1 of article 1 it is enacted that no member of this state shall be disfranchised unless by the law of the land or the judgment of his peers. It is therefore clear that the otherwise plenary power granted to the Legislature to prescribe the method of conducting elections cannot be so exercised as to disfranchise constitutionally qualified electors, and any system of election that unnecessarily prevents the elector from voting or from voting for the candidate of his choice violates the Constitution . We have said ‘unnecessarily,’ for there is no practicable system of conducting elections at which some electors by sickness or other misfortune may not be able to vote. Under our law the blanket ballot affords a voter who may be unable to read the ballot from illiteracy or physical defect an opportunity to vote by securing assistance, and to every elector the right to vote for whom he chooses by writing the name in the blank column if the name of his candidate is not on the ballot. If these rights were not accorded, the present election law would be unconstitutional. In People ex rel. Goring v. President, etc., of Wappingers Falls, 144 N. Y. 616, 620,39 N. E. 641, 642, a vacancy occurred in the office of the police justice of the village. At the next election the official ballot did not contain the name of that office or of any candidate to be voted therefor. The relator received votes at the election, the voters writing his name and the office on the ballot. It was contended that under the language of...