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Hopper v. Britt

Supreme Court of New York, Appellate Division

September 28, 1911

In the Matter of the Application of JOHN J. HOPPER, Respondent, for Relief by a Peremptory Writ of Mandamus, or Otherwise,
v.
J. GABRIEL BRITT and Others, Constituting the Board of Elections of The City of New York, Appellants.

Page 364

APPEAL by the defendants from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 21st day day of September, 1911, granting a peremptory writ of mandamus requiring the defendants to provide an official sample ballot for the general election in November, 1911, in the form provided for by the Election Law of the State of New York prior to the attempted amendment thereof by chapter 649 of the Laws of 1911.

COUNSEL

Terence Farley and Abram I. Elkus, for the appellants the board of elections of the city of New York.

D-Cady Herrick, for the Democratic State committee.

Herbert R. Limburg, for the petitioner.

A. S. Gilbert, for Samuel S. Koenig, chairman of the county committee of the Republican party.

Albert S. Bard, for the Citizens' Union.

INGRAHAM, P. J.:

The petitioner, as a duly qualified elector, and as chairman of the county committee of the Independence League, a political party existing in the State of New York, which had polled more than 10,000 votes for Governor at the last election for Governor held in the State of New York, alleges that chapter 649 of the Laws of 1911, so far as it amended section 331 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22), is void, as a violation of the Constitution of the State of New York. The Special Term held that this amendment to section 331 of the Election Law was a violation of the Constitution of this State, and directed that a mandamus should issue requiring the defendants, the board of elections of the city of New York, to prepare a ballot as provided for by section 331

Page 365

of the Election Law prior to its amendment by chapter 649 of the Laws of 1911; and from that determination the defendants, constituting the board of elections, have appealed. The Special Term having declared this amendment of the Election Law void, as being a violation of the Constitution, I think the court should express its opinion upon this question.

Under the system adopted in this State, which has been in force for many years, the State undertakes the pre-paration of the ballots to be voted upon by the people at the State and municipal elections, and the form of the ballot, the names of the candidates to be voted for, and the method by which the candidates who have been nominated for the several offices should be ascertained, are controlled by various provisions of the Election Law. Prior to the adoption of the present Constitution there were in force provisions of law establishing official ballots, regulating the method by which the names of the candidates should appear upon them (See Laws of 1892, chap. 680, § § 81, 82), and the method of voting; and the authority of the Legislature to regulate the official ballot had been unquestioned. By chapter 810 of the Laws of 1895, after the adoption of the Constitution, the statute law was amended so that each political party recognized by the Election Law had a column upon the official ballot which stated the name of the political party and the emblem adopted by the political party as representing its candidates for office, and in this column were stated the names of the candidates of such political party together with the titles of the offices for which they were candidates. So that under the name of each political party and its emblem it had the names of the candidates nominated by that party, whether such candidates had been nominated by other parties or by independent nomination. (See Election Law [Gen. Laws, chap. 6; Laws of 1892, chap. 680], § 81, as amd. by Laws of 1895, chap. 810.) That system continued down to the amendment of 1911, which is now in question. (See Election Law [Gen. Laws, chap. 6; Laws of 1896, chap. 909], § 81; Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], § 331, as amd. by Laws of 1911, chap. 649.)

By this amendment of section 331 of the Election Law a change was made so that the name ...


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