In the Matter of the Certificate Nominating EDMUND R. TERRY, a Member of the Assembly in the First Assembly District, Kings County.
APPEAL by Edmund R. Terry from an order of the Special Term, entered in the office of the clerk of the county of Kings on the 25th day of October, 1911.
William H. Griffin, William A. Shortt and Edmund R Terry, for the appellant.
William W. Wingate, for the respondent.
On the 18th of October, 1911, there was presented to the custodian of primary records of the city of New York a paper purporting to be an independent certificate of nomination of Edmund R. Terry, as member of assembly for the first assembly district of Kings county. The sufficiency, validity and legality of this certificate was questioned by proper objections thereto, and the matter was brought to a hearing, before Special Term of the Supreme Court, as provided in the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § § 125, 134, as amd. by Laws of 1911, chap. 649, § 2). To constitute a valid nomination for the office in question the certificate must be subscribed by five hundred or more voters or electors,
'each of whom shall add to his signature his place of residence, and make oath that he is an elector, and has truly stated his residence,' which oath shall be made before a notary or other officer authorized to administer oaths. (Id. § § 122, 123.) The certificate in question consisted of sixty different sheets, upon which appeared five hundred and forty-seven names. The court has found as a fact that upon five of said sheets, containing altogether fifty-nine names, five per centum or more of the signatures appearing thereon were forgeries. As a conclusion of law it has determined that these sheets should not be received or filed with the custodian of primary records. The court has found as a fact that upon a sixth sheet five persons whose names appear thereon were not sworn as the law required. As a conclusion of law it has determined that those names should not be counted. If these sixty-four names are properly excluded, an insufficient number of names remain upon the certificate to constitute an effective nomination. From an order declaring the certificate insufficient and invalid and directing the board of elections not to print Terry's name upon the official ballot, this appeal is taken.
Section 123 of the Election Law, as amended, provides that 'No separate sheet comprising an independent certificate of nomination, where such certificate consists of more than one sheet, shall be received and filed with the custodian of primary records if five per centum of the names appearing on such sheet are fraudulent or forged.' This provision of the act may be construed either as establishing a rule of evidence, or as containing a condition precedent to the receiving and filing of such a certificate. This section also declares that the making of the necessary oath by the elector 'shall be proved by the certificate of the notary or other officer before whom the said oath is taken, and it shall be unnecessary for an elector who has subscribed a certificate of nomination, as herein provided, to sign any affidavit as to the matter to which he has made oath as aforesaid.' (§ 123.) The officer administering the oath is required to certify that the elector personally came before him, that he was personally known to him, and known by him to be the elector whose name and place of residence is subscribed by him to the certificate, and that said elector made oath that he is an elector
and has truly stated his residence, and that it is his intention to support at the polls the candidacy of the person nominated for public office in the said certificate. (Id. § 123.) It is further provided in the same section that 'for the purpose of ascertaining whether the person whose name appears on an independent certificate of nomination signed such certificate, the affidavit or testimony of such person that he did not sign such certificate shall be prima facie evidence that he did not sign such certificate.' And in such case, for the purpose of ascertaining the truth with regard to this disputed fact, it is provided in section 125 that questions arising with regard to the 'sufficiency, validity or legality of any such certificate,' shall be judicially determined.
It is clear that, although the certificate of the notary is referred to as 'proof' and the affidavit denying the signature is referred to as 'prima facie evidence,' the same effect is to be given to each form of expression. Each shall be deemed prima facie but not conclusive evidence, since otherwise issues could not arise requiring judicial determination. If the language above quoted relative to those sheets of the certificate which contain more than five per centum of forged or fraudulent names shall be construed as establishing a rule of evidence, although it is not thus specifically declared, we think it would be within the spirit of the act to construe it as meaning that when five per centum of the names appearing upon a given sheet are fraudulent or forged, the presumption arises that all of the remaining names upon that sheet are of the same character, but that presumption might be rebutted by proof that the other ninety-five per centum were genuine signatures of qualified electors who had made the necessary oath. The burden of proving this would, of course, be upon the party seeking to sustain the certificate. If this be the true construction of the act, then this order must be affirmed, because so far as this record discloses no attempt was made to furnish such evidence.
But we prefer to put our decision upon a broader ground, and to hold that the provisions of the act now under consideration mean precisely what is said, and establish a condition precedent ...