office than there are persons to be elected to such office, is invalid, if construed to prohibit an elector participating in a party caucus from thereafter signing an independent nominating certificate, but is valid if construed as limiting the right of an elector to the signing of but one nominating certificate.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 15; Dec. Dig. § 21.*] S. ELECTIONS (§ 21*)-NOMINATIONS BY PETITION-STATUTES.

The provision in Election Law (Consol. Laws 1909, c. 17) § 123, as amended by Laws 1911, c. 649, that the name of no person signing an independent certificate of nomination shall be counted, unless he shall, on one of the dates of registration of such year, be registered as a qualified voter, is invalid, as unreasonable, and as unnecessarily discriminatory.

[Ed. Note.-For other cases, see Elections, Cent. Dig. § 15; Dec. Dig. § 21.*] 9. ELECTIONS (§ 143*)-INDEPENDENT NOMINATIONS-STATUTORY REGULA

TIONS.

The rule regulating independent nominations must be the same as the rule governing other nominations, and the nominators must be, at the time of the making of the nominations, duly qualified electors and entitled to register and vote.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 121; Dec. Dig. § 143.*]

10. ELECTIONS (§ 21*)-PRIMARY ELECTIONS-INDEPENDENT NOMINATIONS— STATUTORY REGULATIONS-VALIDITY.

The provision of Election Law (Consol. Laws 1909, c. 17) § 122, as amended by Laws 1911, c. 891, requiring 800 signatures to an independent nominating petition to nominate an assemblyman, will not be adjudged invalid, as unreasonable.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 15; Dec. Dig. § 21,*] 11. MANDAMUS (§ 74*)-REGULATION OF ACTIONS OF Boards oF ELECTIONS. Mandamus lies to control the action of the board of elections of a county, to the end that it may be known, prior to the last day for the filing of nominating certificates, how many electors and who may sign such certificates, and that the board may know what certificates they are to receive, file, and act on.

[Ed. Note. For other cases, see Mandamus, Cent. Dig. §§ 150–157; Dec. Dig. 74.*]

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. Motion for peremptory writ granted in part.

William M. Chadbourne, of New York City (Albert S. Bard, of New York City, of counsel), for relators.

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

Julius Henry Cohen, of New York City, for Citizens' Union of New York City.

Henry T. Dykman and Henry C. Henderson, both of White Plains (Aaron J. Levy, of New York City, of counsel), for Board of Election Com'rs.

TOMPKINS, J. This is a motion for a peremptory writ of mandamus, directed to the board of elections of Putnam county, requiring

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

said board to disregard certain provisions of the Election Law (Consol. Laws 1909, c. 17), and the laws known as chapters 649 and 891 of the Laws of 1911, amending sections 122 and 123 of the Election Law, relating to the number and qualifications of the signers of independent nominating certificates, upon the ground that such provisions. are unconstitutional and void. The provisions of the Election Law that are directly attacked in this proceeding are as follows:

(1) The provision requiring 1,500 signatures to an independent nominating petition for county officers and 800 signatures to nominate an assemblyman.

(2) The addition to section 123 of the Election Law reading 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 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."

(3) That part of section 123 reading as follows:

"No person shall join in nominating more candidates for any one office than there are persons to be elected thereto."

It is claimed by the relators that the effect of this provision is to prevent any elector, who voted at the spring primaries of 1912 for members of the state committee of any party (these in turn being charged by section 54 of the Election Law with the duty of nominating presidential electors) from signing an independent nominating certificate for presidential electors for the coming election. The substance of the relator's contention is that these provisions deprive independent political bodies or groups of that equal opportunity to nominate and vote for candidates of their choice that is guaranteed to all duly qualified voters by the Constitution of this state.

[1] The Court of Appeals, in the matter of Hopper v. Britt, 203 N. Y. 144, 96 N. E. 371, after reciting the provisions of the Constitution respecting the right of franchise and the qualifications of voters, said:

"It is therefore clear that the otherwise plenary power granted to the Legislature to prescribe the method of conducting elections cannot be so exercised as to disfranchise constitutionally qualified electors, and any system of election that unnecessarily prevents the elector from voting, or from voting for the candidate of his choice, violates the Constitution. We have said 'unnecessarily,' for there is no practicable system of conducting elections at which some electors, by sickness or other misfortune, may not be able to vote. Under our law, the blank ballot affords a voter who may be unable to read the ballot, from illiteracy or physical defect, an opportunity to vote by securing assistance, and to every elector the right to vote for whom he chooses by writing the name in the blank column, if the name of his candidate is not on the ballot. If these rights were not accorded, the present election law would be unconstitutional. In People ex rel. Goring v. President, etc., of Wappingers Falls, 144 N. Y. 616 [39 N. E. 641], a vacancy occurred in the office of police justice of the village. At the next election the official ballot did not contain the name of that office, or of any candidate to be voted therefor. The elector received votes at the election; the voters

writing his name and the office on the ballot. It was contended that, under the language of the election law, the votes were invalid. This court held the election good, saying: "The Legislature may prescribe regulations for ascertaining the citizens who shall be entitled to exercise the right of suffrage, for that power is given to it by the Constitution. In prescribing regulations for that purpose, or in respect to voting by ballot, it does so subject to, and presumably in furtherance of, the constitutional right, and its enactments are to be construed in the broadest spirit of securing to all citizens possessing the necessary qualifications, the right freely to cast their ballots for offices to be filled by election, and the right to have those ballots, when cast in compliance with the law, received and fairly counted. Legislation which fails in such respects, and prevents the full exercise of the right as secured by the Constitution, is invalid.' * We think the constitutional provisions recited and the provision that certain officers shall be chosen by the electors, necessarily further imply that every elector shall have the right to cast his vote with equal facility to that afforded to other voters, or, to speak more accurately, without unnecessary discrimination against him as to the manner of casting his vote. 串

* *

"While the Constitution does not guarantee that the elector shall be allowed to express his vote by a single mark, our position is that he is guaranteed the right to express his will by a single mark if other voters are given the right to express theirs by a single mark, and there is no difficulty in according the right to all. It is said by the Supreme Court of Ohio in State v. Bode, 55 Ohio St. 224 [45 N. E. 195, 34 L. R. A. 498, 60 Am. St. Rep. 696], in upholding a law of this kind: "There is no discrimination against or in favor of any one; and, if any inequality arises, it arises, not from any inequality caused by the statute, but by reason of inequalities in the persons of the voters, and such inequalities are unavoidable. It is always much more difficult for some electors to cast their votes than others. Distance, bad roads, means of transportation, bad health, and many other considerations may and do render it much more difficult for some men to cast their ballots than others. But these difficulties inhere in the men themselves, and not in the law.' * This argument ignores the distinction between difficulties or inconveniences occurring by nature or accident and inconveniences created by statute. Inequality in the facilities afforded the electors in casting their votes may defeat the will of the people as thoroughly as restrictions which the courts would hold to operate as a disfranchisement of voters. * But not only are all parties or bodies polling 10,000 votes, which is less than 1 per cent. of the whole vote of the state, given the right to a separate column, but independent bodies, on the petition of but a small fraction of the electorate, have the same right. Thus the rights of the electors of all organizations which have the most remote or shadowy chance of electing their nominees are given equal rights with those of the great parties, while the inviolable right of every elector is secured by the blank column. But if the character of the ballot necessarily involves discrimination against certain classes or bodies of electors, it is a reason that the statute should not increase the discrimination.

"It has been urged in justification of the statutory provisions before us that independent bodies are often organized for the sake of trading or combining with the regular parties or other organizations on corrupt considerations. It is not pretended, however, that the statute tends to prevent that evil save in one way, by making it more difficult to vote fusion or coalition tickets. The same argument was advanced in the matter of Callahan, 200 N. Y. 59 [93 N. E. 262, 140 Am.' St. Rep. 626], where it was held that the Legislature could not constitutionally prevent the nomination of fusion or combination candidates. We there said: "The liberty of the electors in the exercise of the right vested in them by the Constitution to choose public officers on whatever principle or dictated by whatever motive they see fit, unless those motives contravene common morality, and are therefore criminal, such as bribery, violence, intimidation, or fraud, cannot be denied.' The method of voting on an official ballot which has prevailed with us now

for a number of years probably has corrected evils that formerly were prevalent, but personally I fear that in some respects it has undermined public morality on the question of the right of the elector to vote for whom he will, provided it is dictated by no criminal consideration. Ever since the adoption of the present scheme there has been an attempt to provide a ballot in such form as to prevent the elector from voting in the way he wishes to vote. In this constant effort it must be conceded that persons desirous of so-called ballot reform, and not political partisans, have been the most active, though by the present legislation the latter seem to have been more successful. All labors by a citizen to induce his fellow citizens to change the principle on which they cast their votes, when he believes that principle is injurious to the welfare of the community, are praiseworthy and patriotic. But, however gross may be the error of his fellows, he has no moral right to correct that error by making it difficult for them to exercise their constitutional right." In Matter of Hopper, 204 N. Y. 524, 98 N. E. 86, the same court said:

"Freedom in voting is guaranteed by the Constitution. The right to vote carries with it the right to nominate candidates to be voted for, so that voting may become effective through co-operation. Any statute which restrains freedom in nominating candidates at the primary restrains freedom in voting for candidates at the regular elections. Some restrictions may be necessary, in order to so regulate the right as to properly protect it; but any unnecessary or unreasonable restraint is in conflict with the Constitution, not because that instrument refers to primary elections, but because statutory provisions relating to primary elections, when they restrain freedom in nominating, also restrain freedom in voting. Whatever gives one class of voters, either at an election or a primary, an undue advantage over any other class, tampers with a constitutional right. If the voters who support candidate A stand a better chance to nominate him than those who support candidate B have to select him, the rights of the latter are unlawfully interfered with."

*

Thus it is seen that the settled law of the state is that no unnecessary hindrance shall be placed in the way of nominating or voting for candidates independent of the recognized political parties, and that no unreasonable restraints or limitations shall be placed upon independent political groups or bodies, who seek an opportunity to vote for candidates other than those whose names appear in the party columns of the official ballot. Equality of opportunity, both to nominate and vote for candidates, is the guaranty of the Constitution as it has been interpreted by our highest court.

Applying that rule, it follows that certain of the provisions in question contravene the constitutional rights of electors. The policy of the law, as it has been declared by the courts, is to facilitate the free choice of the elector, both in the matter of nominations and at the polls, while the effect of these provisions is to make more difficult, if not impossible, the selection of candidates to be voted for by those who are not in accord with party principles or in favor of party nominations.

[2] To require 1,500 signatures to a nominating certificate for county offices in Putnam and other small counties of the state is unreasonable, and an unjust discrimination against independent political parties. The total average vote of Putnam county is a little over 3,000. It may be assumed, for the purpose of this discussion, that there will be three tickets in the field at the coming election, namely,

Republican, Democratic and National Progressive, besides the Socialist and Prohibition tickets. Dividing the total vote of that county into three equal parts, we have a little over 1,000 votes cast for each of the three leading parties, or 500 less than the number required by the election law to make independent nominations, thereby making it impossible for the Progressives (so called) to nominate county officers, even assuming that one-third of the entire electorate of the county desire to support such a ticket.

In several other counties of the state the total vote is between 3,000 and 5,000, and there, too, the requirement of 1,500 signatures to a petition for county officers is unreasonable, and would work injustice to independent political parties.

In Hamilton county the total vote for Governor in 1910 was less than 1,200, yet under this law an independent group of electors must secure 1,500 electors to sign a nominating certificate for independent county nominations-more than the total of all the voters in the county. To require 1,500 names to an independent nominating certificate for county officers in any but a few of the larger counties of the state makes unjust discrimination in favor of the old political parties, and places unreasonable hindrances in the way of those bodies of electors who are not in accord with the old parties.

How can it be said that an independent political body has equal opportunity to nominate candidates for county offices with the old parties, when for the latter no prescribed number of votes is necessary and a very few may name candidates, while the former must procure 1,500 signers?

[3] Of course, independent bodies of voters have not the same status as regular party organizations, and regulations respecting the manner of making nominations and legislation determining the number of nominators is proper and necessary; but such legislation and regulations, to be valid, must be reasonable, and not impose difficult and unnecessary restraints, hindrances, or limitations, or deprive such independent bodies of equality of opportunity with all other bodies and parties. In the case of People ex rel. Coffey v. Democratic Committee, 164 N. Y. 335, 58 N. E. 124, 51 L. R. A. 674, Judge Cullen, in a dissenting opinion (but not on this point), said:

"The right of the electors to organize and associate themselves for the purpose of choosing public officers is as absolute and beyond legislative control as their right to associate for the purpose of business or social intercourse or recreation. The Legislature may, doubtless, forbid fraud, corruption, intimidation, or other crimes in political organizations, the same as in business associations; but beyond this it cannot go. * * * The liberty of the electors in the exercise of the right vested in them by the Constitution to choose public officers on whatever principle or dictated by whatever motive they see fit, unless those motives contravene common morality, and are, therefore, criminal, cannot be denied."

In the matter of Burke v. Terry, 203 N. Y. 293, 96 N. E. 931, Judge Willard Bartlett, writing for the court, said:

"The franchise of which no 'member of this state' may be deprived is not only the right of citizens who possess the constitutional qualifications to vote for public officers at general and special elections, but it also includes the