People ex rel. Goring v. President of Village of Wappinger's Falls ( 1894 )

BBOWN, P. J.

The facts out of which this case arose are correctly stated in the opinion of Justice DYKMAN (infra), and need not be here repeated. The question presented is whether a duly-qualified voter may vote for a person for an office which is not named on the official ballot, but which exists by statute, and is required to be filled at an election at which the voter desires to vote. Section1 104 of the election law (chapter 680, Laws 1892) provides that, within the voting booth, “the name of any person for whom the voter desires to vote for any office named on the official ballot may be written on the official ballot, which the voter proposes to vote,- or a paster containing one or more such names or offices may be pasted thereon.” The ballot reform law of 1890 (chapter 262, § 25) provided that “the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office.” But, under section 104 of the present law, it will be observed that the right to write or paste upon the ballot the name of any person for whom the voter desires to vote is apparently limited .to the offices named on the official ballot. In the case be-fore us, the office of police justice was not named on the official ballot The office had, however, been created by law, and it was required to be filled at the village election. There had, however, been no incumbent of the office for the greater part of the expiring term, and no nominations had been made for it, and the fact that it was to be filled was probably overlooked by the officers, and the great majority of electors, of the village. It was nevertheless, by section 82 of the election law, made the duty of the. clerk of the village to furnish official ballots containing the names of all the offices to be filled at the election, and the name of the office of police justice should have been upon the ballot. We are of the opinion that section 104 must be construed to give to the voter the' right, not only to vote for any person for an office named on the ballot, but also for an office which ought to have been named thereon, but which had been omitted therefrom by the neglect of the officer charged with the duty of its preparation. The right to vote at an election is derived from the constitution; the manner of voting is regulated by statute. The constitutional provision is that “every-male citizen of the age of twenty-one years shall be entitled to vote at all elections.” This provision confers the right to vote for a person for every office required by law to be filled at the election at which the voter desires to vote. The constitution contains no restriction upon this right, and the only express power given to the legislature in reference to it is to enact laws “for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage.”’ There is, of course, an implied power to regulate the manner of voting, but any law which prohibits the right to vote is unconstitutional. The present election law has provided for the preparation of an official ballot by certain designated officers, and it makes it their duty to print the names of all offices to be filled upon the face of each and all of the official ballots. This duty is in no wise made dependent upon the making of nominations, it being further provided by section 82 that, if the full number of candidates for the offices specified on any one kind of ballot shall not have been nominated, “* * * blank spaces shall be left on each ballot of such kind where the names of candidates would appear, except for such failure to nominate.” The intention of the legislature is plain. It is that there shall be printed upon the official ballot the name of every office to be filled at the election, and, if this duty is performed by the officer charged with it, the voter, under section 104, is enabled to exercise his constitutional right to vote for any person he chooses for any office to be filled at the election. It is equally plain that the legislature did not intend that this right should depend upon the performance or nonperformance of the duty of the officer charged with the preparation of the official ballot. Yet that is what the argument of the appellant comes to. The voter, it is said, may vote for any person for any office named on the ballot, but if, through inadvertence, neglect of duty, or other cause, the name of the office is omitted from the ballot, no vote can be cast for any person for that office, and no election for that office can be held. Such a construction, if it could be adopted, would disfranchise the voter, and deprive the people of the right of the proper administration of their laws. But it cannot prevail, as it would make the law unconstitutional. The original ballot reform law, when introduced in the legislature, in 1888, contained a provision which permitted the voter to vote only' for a candidate duly nominated and certified; but that provision was rejected, and, in the discussion that then and since has been had upon the question, it has been the almost unanimous opinion of the lawyers of the state that any law prescribing an official ballot which did not permit the voter to write or paste upon his ballot the name of any person for whom he desires to vote for any office to be filled at the election, whether named on the official ballot or not, would be in violation of the provision of the constitution hereinbefore quoted. Our conclusion, therefore, is that the votes cast for the relator were valid, and that he was duly elected to the office of police justice of the village.

We agree with Justice DYKMAN that the special term had no power to direct the trustees of the village to fix the salary of the office. We have the power to modify the order, however (People v. Board of Sup’rs of Dutchess Co., 135 N. Y. 535, 32 N. E. 242); and that part of it should be stricken out, and, so modified, it should be affirmed, without costs of appeal.