People ex rel. Hotchkiss v. Smith

• Decision Date: 04 October 1912
• Parties: PEOPLE ex rel. HOTCHKISS et al. v. SMITH et al. PEOPLE ex rel. WOODRUFF v. BRITT et al.
• Court: New York Court of Appeals Court of Appeals

206 N.Y. 231

99 N.E. 568

PEOPLE ex rel. HOTCHKISS et al.

v.SMITH et al.

PEOPLE ex rel. WOODRUFF

v.BRITT et al.

Court of Appeals of New York.

Oct. 4, 1912.

Appeal from Supreme Court, Appellate Division, Second Department.

Mandamus by the People, on the relation of William H. Hotchkiss and another, against John Smith and another, constituting the Board of Elections of Putnam County, and on the relation of Timothy L. Woodruff against J. Gabriel Britt and others, Board of Elections of New York. From an order of the Appellate Division (137 N. Y. Supp. 387) modifying and affirming an order granting the writ, relators and respondents prosecute cross-appeals. Modified and affirmed.

William M. Chadbourne, of New York City, for petitioners.

J. Hampden Dougherty, of New York City, for intervener Empire State Democracy.

Albert S. Bard, of New York City, for intervener Citizens' Union.

Henry C. Henderson, of New York City, for Board of Elections.

Thomas Carmody, Atty. Gen., Bartow S. Weeks, John G. Saxe, and Elwood M. Rabenold, all of New York City, amici curiae.

CHASE, J.

The petitioner Hotchkiss, who alleges that he is the provisional chairman in and for the state of New York for the National Progressive party, and the petitioner Fish, who alleges that he is the chairman of the Putnam county committee of said party, and each alleging that said party is a new political party, organized and existing throughout the United States, and that it intends to cause nominations to be made be petition, among others, for county officers for Putnam county and member of assembly for said county so as to entitle its party ticket to be printed in a separate column upon the official ballots for said election, and further alleging that certain provisions of the Election Law are so onerous as to operate as a prohibition against nominations by said party and other independent political parties, ask that said provisions be declared unconstitutional and void and that said defendants be directed to disregard them.

The sections of the Election Law in controversy are section 122 thereof, as amended by section 62 of chapter 891 of the Laws of 1911, and section 123 thereof, as amended by chapter 649 of the Laws of 1911. Said sections, so far as material, are as follows:

‘Sec. 122. Independent nominations. Nominations made as provided by this and the next section shall be known as independent nominations, and the certificate whereby such nominations are made shall be known as an independent certificate of nomination. Independent nominations of candidates for public office to be voted for by all the voters of the state can only be made by six thousand or more voters of the state; provided, however, that in making up such number at least fifty voters in each county of the state (the counties of Fulton and Hamilton to be considered as one county) shall subscribe the certificate provided for in this and the next section. Independent nominations of candidates for municipal offices to be voted for by all the voters of a municipality can only be made if in a city of the first class by four thousand voters of such city; if in cities of the second class by one thousand five hundred voters of such city; and in other cities by eight hundred voters thereof. Independent nominations of candidates for a county office in a county in which there is a city of the first class can only be made by four thousand voters of such county. Independent nominations of candidates for public office other than municipal offices to be voted for in a district less than the whole state, but greater than a town or ward of a city, can only be made by one thousand five hundred voters or more of the district, except that eight hundred voters or more of an assembly district may make such nomination for member of assembly to be voted for in such district. * * *

‘Sec. 123. Independent certificates of nomination. Independent nominations shall be made by a certificate subscribed by the required number of such electors, each of whom shall add to his signature his place of residence and make oath that he is an elector and had truly stated his residence. * * * The certificate of nomination and each separate paper thereof, if there be more than one such paper, shall contain the following declaration which shall be subscribed by the signers thereof: ‘We the undersigned duly qualified electors of the district for which the nomination for public office is hereby made under the provisions of sections one hundred and twenty-two, and one hundred and twenty-three of the Election Law do hereby declare that it is our intention to support at the polls the candidacy of the person or persons herein nominated for public office.’ The certificate shall also contain the titles of the offices to be filled, the name and residence of each candidate nominated, and if in a city, the street number of such residence and his place of business, if any; and shall designate in not more than five words the political or other name which the signers shall select, which name shall not include the name of any organized political party. * * * No person shall join in nominating more candidates for any one office than there are persons to be elected thereto, and no certificate shall contain the names of more candidates for any office than there are persons to be elected to such office. The name of no person signing an independent certificate of nomination shall be counted unless such person shall on one of the days of registration in such year be registered as a qualified elector, and in case a candidate nominated by an independent certificate of nomination be at the time of filing the said certificate or afterwards the candidate of a political party for the same office the name of no person who is an enrolled member of such political party shall be counted. * * * If the name of a person who has signed a certificate of independent nomination appear upon another certificate nominating the same or a different person for the same office, it shall not be counted upon either certificate.'

The Special Term ordered that a peremptory writ of mandamus issue requiring the defendants to disregard as unconstitutional and void ‘the insertion by said amendment of the words ‘five hundred” in said section 122, and also to disregard that part of said section 123, as so amended as follows: ‘The name of no person signing an independent certificate of nomination shall be counted unless such person shall on one of the days of registration in such year be registered as a qualified elector, and in case a candidate nominated by an independent certificate of nomination by at the time of filing the said certificate or afterwards the candidate of a political party for the same office the name of no person who is an enrolled member of such political party shall be counted.’ And said order further directed said defendants, ‘in computing the number of valid signatures to any such petition, to include the signature of any qualified voter of Putnam county who either may have registered or shall be qualified to register for said general election whether or not the said voter shall be enrolled as a member of any political party, and whether or not the said voter has or shall have participated in any party primary, and regardless of any nomination which any other political party or independent political party may make for said office, provided only that the signature of no elector shall be counted who has signed independent nominating petitions for more candidates for any one office than there are persons to be elected thereto.’

An appeal was taken by the petitioners and said defendants to the Appellate Division of the Supreme Court, where the order of the Special Term was modified by directing said defendants to disregard as unconstitutional and void the insertion in said amendment to section 122 of the words ‘one thousand five hundred’ in place of the words ‘one thousand’ and the words ‘eight hundred’ in place of the words ‘five hundred’ in two places; and also by directing that said defendants compute ‘the number of valid signatures to any such petition and not to refuse to count the signature of any qualified voter of Putnam county who shall be registered or shall register for said general election if the sole ground for refusal so to count is that the said voter has or shall have participated in any party primary, but the signature of no elector shall be counted who has signed independent nominating petitions for more candidates for any one office than there are persons to be elected thereto,’ and in all other respects it ordered that the petition be denied as a matter of law and not in the exercise of discretion.

The petitioners and said defendants appeal to this court, and the petitioners claim:

(1) That the amendment of section 122 made in 1911, so far as it requires the signatures of 1,500 or more voters to a certificate of independent nomination of a candidate for public office, other than municipal officers, to be voted for in a district less than the whole state, but greater than a town or ward of a city, and the signatures of 800 or more voters to a certificate of independent nomination of a candidate for member of assembly to be voted for in such district, are unconstitutional and void, and that the provisions of section 122 of the Election Law, as contained in chapter 17 of the Consolidated Laws, and also section 57 of chapter 909 of the Laws of 1896, including the amendments thereto by chapter 335 of the Laws of 1898, and chapter 654 of the Laws of 1901, and also section 57 of chapter 680 of the Laws of 1892, so far as they direct the number of signatures necessary upon a certificate of independent nomination of candidates for public office, other than municipal offices, to be voted for in a district less than the whole state, but greater than a town or ward of a city, and the number of signatures necessary upon a certificate for...