Hopper v. Britt

• Decision Date: 07 March 1912
• Citation: 204 N.Y. 524,98 N.E. 86
• Parties: HOPPER et al. v. BRITT et al.
• Court: New York Court of Appeals Court of Appeals

204 N.Y. 524

98 N.E. 86

HOPPER et al.

v.BRITT et al.

Court of Appeals of New York.

March 7, 1912.

Cross-Appeals from Supreme Court, Appellate Division, First Department.

Application for mandamus by John J. Hopper and another against J. Gabriel Britt and others constituting the Board of Election of the City of New York. On a judgment of the Appellate Division (133 N. Y. Supp. 778) reversing a part and affirming a part of the peremptory writ granted by the Special Term, relators appeal. From the part of the order reversed and from the part of the order affirmed, defendants appeal. Affirmed.

By a petition which set forth the facts necessary to raise the questions, the relators asked the Supreme Court at Special Term to require the board of elections of the city of New York in providing ballots for the coming spring primaries to disregard certain provisions of the Election Law, as amended by chapter 891 of the Laws of 1911, upon the ground that they are unconstitutional and void. Those provisions, so far as now material, are as follows: (1) That part of section 57 which provides that ‘the party emblem shall constitute the committee emblem of the party.’ (2) That part of section 58 which provides that ‘the name of a condidate shall not appear more than once on the ballot as a candidate for the same public office or party position.’ The Special Term granted the motion and issued a peremptory writ accordingly, upon the ground that both of said provisions violate the Constitution. On appeal to the Appellate Division the order was modified by reversing the portion relating to the party emblem and affirming as to the part relating to the name of a candidate. The relators appealed from so much of the order as reversed in part the order of the Special Term, and the board of elections appealed from so much of the order as affirmed in part the order of the Special Term.

Herbert R. Limburg, for relators.

Terence Farley, for Board of Elections.

James A. Foley, for interveners Democratic Committee.

A. S. Gilbert, for interveners Republican Committee.

VANN, J. (after stating the facts as above).

The method of nominating party candidates for public office through a convention of delegates, which prevailed in this state for time out of mind, was mainly done away with by the act of the Legislature now called in question, and a new method of nominating by committees set up in its place. This was done by the Primary Law, so called, which is really an amendment of the Election Law (L. 1911, c. 891). The statute now provides for the election of party committees and the selection of party candidates by the ballots of party voters cast at the primaries. The party committee is authorized to designate candidates for nomination, and other candidates may be designated by petition embracing not less than 5 per cent. of the enrolled voters of the party within the district and by not less than 4 per cent. of the entire vote cast in the political subdivision for the party candidate for Governor at the last preceding gubernatorial election, and whoever receives the greatest number of votes at the primary thereby becomes the candidate of the party. It is provided by section 57 that ‘the party emblem shall constitute the committee emblem of the party,’ and each set of petitioners, if there is more than one, may select its own emblem, and if it fails to do so the Secretary of State is required to provide one. The relators claim that all nominees presented for support at the primaries are entitled to stand on the same footing and that in making the party emblem the committee emblem of the party the Legislature made an unjust and unfair discrimination.

[1] An entire article of the statute is devoted to party organization by means of committees elected by the enrolled members of the party, including a state committee and a committee for each district where a public officer is to be elected by the voters thereof. Each committee is required to organize by the election of officers and is authorized to prepare rules for the government of the party and the conduct of official primaries within its political subdivision. It thus becomes the governing body of the party in the state or district for which it was elected. The committee represents the party because it is elected by the party voters at the primaries. It is within the power of the Legislature to give it the party emblem because it represents the party and is the agency provided for the management of the party. If, however, a certain percentage of the party voters are not satisfied with the candidates designated by the committee, they may designate their own candidates by petition. Other members of the party may do the same, and thus two or more sets of candidates for nomination would be presented to the party voters who make their choice by the vote of a majority. Emblems are necessary at primaries the same as at regular elections so as to enable the voter to avoid mistakes and vote intelligently. The provision in question simply gives effect to the truth, to the situation as it really exists, for the committee does not represent a faction in the party, but the party itself so far as it takes action authorized by law. It is the administrative body of the party, subject only to the limitations of the statute and the rules duly adopted by the party. If the opposition elects its committees this year, they will represent the party next year and be entitled to its emblem. The committee in power, having been chosen by the voters of the party as its agent for party purposes, necessarily represents the party as to those purposes. By an amendment made this year existing committees are continued until their successors are elected. L. 1912, c. 4, § 5.

It is true that the candidates of the regular organization ordinarily have an advantage, because the majority of voters are generally in favor of the organization created by themselves; but this is an inherent and legitimate advantage which cannot be done away with. Under the present system the committee would not be the organization if a majority of the party voters had not made it the organization. The party voter has the right to know what candidates for nomination were designated by the committee, for he has the right to vote for them or against them, simply because they are the nominees of the committee. He has the right to vote for the committee's candidates merely because the committee presented them and the emblem enables him to know whom he is voting for. In some cases the candidates of the committee instead of having an advantage, might be put at disadvantage, owing to widespread dissatisfaction with the general conduct of the committee. The use of the party emblem has the same effect as if the statute had authorized the committee to place at the head of their set of candidates, ‘Organization Ticket,’ leaving petitioners to put at the head of their list of candidates ‘Opposition Ticket,’ ‘Anti-Organization Ticket,’ or something of like character to show what ticket it is. To such a method, if authorized by the Legislature, we see no constitutional objection, because it would simply give the voter the information he is entitled to. The object of the Primary Law is to enable the party voter to vote for the candidates that he chooses, and the emblem is simply a guide to intelligent choice. There is nothing to prevent him from voting for the candidate he wishes to have nominated. Every party voter can cast his ballot with the same ease and freedom that is afforded to any other voter. There is absolute equality of opportunity. There would be unfair discrimination if one set of candidates could have an emblem and the others none; but the fact that the nominees of the committee are given the party emblem because they are the official representatives of the party for the time being is not an unfair discrimination. As was said by Mr. Justice Dowling for the Appellate Division: ‘The mere fact that the party committee which, until displaced, represents the majority of the party membership, is given the right to use the party emblem is not an abuse of the legislative power.’

[2] The remaining question involves the validity of the provision that the name of a candidate shall not appear more than once on the...