right to participate in the several methods established by law for the selection of candidates to be voted for. The Legislature of this state in its wisdom decided some years ago to adopt an official ballot, to be printed at the public expense, upon which the voter indicates his preference by cross-marks placed opposite the names of those candidates whose election he desires. In providing for such a ballot it was not only proper, but necessary, to prescribe the conditions which should entitle political parties and independent bodies of citizens to have the names of their nominees appear upon the ballot in print. It is argued that these conditions are wholly within the discretion of the Legislature, and not subject to judicial review or control; but this proposition is subject to the qualification that no condition can be imposed which conflicts with the constitutional rights of electors, express or implied. We have recently held that one of these implied constitutional rights is equality of opportunity so far as practicable. The Chief Judge, speaking for the unanimous court in the matter of Hopper v. Britt, 203 N. Y. 144, at page 151 [96 N. E. 371, at page 373], said: '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.' The same rule applies to the right to participate in making independent nominations. * * *

"Still another suggestion requires notice. It is said that no regulation which the Legislature may see fit to impose in respect to independent nominations can be subject to any attack for validity under the Constitution, inasmuch as the Legislature need not have permitted independent nominations to be printed upon the official ballot at all. To this view we are unable to assent. The framers of the Election Law which first provided for the official ballot properly recognized the unquestionable fact that it is a great practical advantage to political parties and their candidates to have the names of the nominees appear upon the ballot in print. They also properly recognize the possibility, which experience has proved to be a probability, not to say certainty, that large bodies of citizens not constituting political parties might desire to unite in the effort to elect candidates of their own selection, and that these bodies might justly claim a place for their nominees in print upon the official ballot. This claim is so manifestly just, and its recognition so essential to prevent that unconstitutional discrimination against the rights of electors which was condemned in the Hopper Case, supra, that we should regard any legislation as plainly invalid which allowed only the names of party candidates to be printed upon the official ballot, to the exclusion of candidates named by considerable bodies of citizens acting independ ently of party."

The tendency of recent legislation has not been in line with the attitude of the Court of Appeals on this question, but decidedly away from it, and from time to time the legislation enacted has made it very difficult for independent nominations to be made. By Laws 1890, c. 262, 1,000 signatures were required for independent nominations for state officers. That number has been increased, until by the present law 6,000 are required. The law of 1890 required 250 signatures for county officers. That number has been increased from time to time until, by the present law, 1,500 are required. By the law of 1890 100 signatures were required for an assembly district nomination. Now 800 are necessary.

In the argument of this motion, Mr. Levy, the chairman of the judiciary committee of the state assembly in 1911, and whose name the present law bears, very frankly stated that the purpose of the present law was to make independent nominations more difficult. That,

however, is contrary to the spirit of our institutions and the underlying principle of our state Constitution, and the decisions of the Court of Appeals during the last few years. It seems to me that a percentage basis would be the fairest method of regulating the number of signers of independent certificates, thereby making the number required depend upon the population or the voting population of the several counties of the state.

[4, 5] Upon the argument of this motion, the question arose as to what law or rule would control the making and filing of independent nominating certificates, in the event that the provisions of the present law are declared unconstitutional. It was suggested that the court could fix and determine what would be a reasonable number of signers for such a certificate. That, however, is beyond the province of the court, and a matter for legislative action only. My opinion is that, if the present law is unconstitutional and invalid, the last preceding legislative enactment fixing the number of nominators must control; but the relators say that, if that view is to be adopted by the court, it should be held that the provision of the law of 1896 requiring 1,000 signatures for county officers is also unreasonable and invalid. My view, however, is that the court should not declare to be unreasonable and unjustly discriminating a law which was in force for 15 or 16 years without any attack being made upon it.

My conclusion, therefore, as respecting the number of signers required for independent nominations of county officers, is that the present law is unreasonable and unjustly discriminative and void, and I refuse to find that the statute of 1896 was unreasonable in its provisions. Whether the board of election commissioners shall follow the provisions of the law of 1896 respecting the number of nominators on independent certificates, or follow the advice of counsel, or seek instructions from the Attorney General, this court does not undertake to determine.

[6] The provision of section 123 of the Election Law, which strikes from an independent nominating petition the name of an enrolled member of a party if the party nominates the same candidate, and prevents the counting of the names of those who may not register on one of the dates of registration, are also unconstitutional, because they unreasonably and unnecessarily impede and obstruct the making of independent nominations. The effect of these provisions is to prevent an enrolled member of a party from leaving his party and uniting in the nomination of independent candidates, and also to invalidate and destroy a petition that was sufficient and valid at the time it was filed, because of the failure of one or more of its signers to thereafter register. Why may not a voter leave his old party, even though he be enrolled therein, and join a new party or body of voters within a year of his enrollment, and sign a petition for a nomination of an independent candidate? I think any legislation that prevents an American citizen from so doing is unreasonable and indefensible.

[7] And for the same reason the provision of section 123, which says "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," is also invalid, if it is to be construed as prohibiting an elector who has participated in a party caucus from thereafter signing an independent nominating certificate. If, however, it is to be construed as limiting the right of an elector to the signing of but one nominating certificate (which I think is the meaning of the provision), it is a proper regulation and should be upheld.

[8] Section 123 also provides:

"The name of no person signing an independent certificate of nomination shall be counted, unless such person shall, on one of the dates of registration in such year, be registered as a qualified voter."

Here we have this situation: An independent nominating petition for county officers is required to bear the signatures of 1,500 qualified voters. Such certificate must be filed on or before the 11th day of October, which is the first of the four days for registration. Now, this law provides that the name of no person signing an independent certificate shall be counted, "unless such person shall, on one of the days of registration in such year, be registered as a qualified voter." The effect of this provision is that, after the filing of a perfectly good and sufficient nominating certificate containing the requisite 1,500 names, it may be rendered invalid and worthless by the failure of one or more of the 1,500 signers to register on one of the remaining days for registration. The certificate must be filed on or before the first day for registration. If thereafter, and when it is too late for the filing of a new certificate, death, sickness, or other disability should prevent some of the signers from registering, the whole certificate would fall, and no such independent nomination would or could be made. The mere statement of the proposition must demonstrate its unsoundness. That a certificate, valid when filed, can be vitiated by some unavoidable occurrence thereafter, is beyond all reason. Here, too, we have an unreasonable and unnecessary discrimination. Party nominations are not made void by failure of party nominators to register.

[9] The rule respecting independent nominations should be the same as that which applies to other nominations; i. e., that the nominators shall be, at the time the nominations are made, duly qualified electors and entitled to register and vote.

[10] I do not decide that the provision requiring 800 signers to nominate a member of assembly is unreasonable. The increase over the number required by the old law, which was in force for 15 or 16 years, is only 300, and Hamilton county, already referred to, which is the smallest county in the state, is joined with Fulton county as a single assembly district, while in the other assembly districts of the state the voting population may be large enough to justify requiring 800 signers.

My conclusions are that the provisions requiring 1,500 signers to nominate independent county officers, and striking from a nomination petition or certificate the name of an enrolled member of a political party, if that party nominates the same candidate, and striking from

the nominating certificate, already duly filed, the names of those who may not thereafter register, are unconstitutional and void, and are not to be regarded by the election board of Putnam county in receiving, filing, and acting upon independent nominating certificates.

I have not given the reasons for my conclusions more in detail because of lack of time. The papers and briefs were submitted at 3 o'clock this afternoon, and I promised a decision by to-morrow morning, which necessarily limits this opinion to quotations from the decisions, and conclusions therefrom and from the undisputed facts. [11] It is of no consequence whether the defendant Smith voluntarily and knowingly made the affidavit annexed to the petition or not. It is to be presumed that, in the absence of directions to the contrary, the election board of which he is a member would follow the Election Law as it is, and require 1,500 signatures to an independent nominating certificate for county officers, and observe the other provisions of the law as to striking the names therefrom, etc. And for that reason it is proper that the relators should maintain this proceeding, to the end that they may know, prior to the last day for filing the nominating certificates, how many electors and who may sign such certificates, and that the election board may know what they are to receive, file, and act upon. The Hopper Cases, supra, seem ample authority for this present proceeding.

Motion granted to the extent indicated. Order to be settled at my chambers in Nyack, September 7th, at 10:30 a. m.

(77 Misc. Rep. 453.)

PEOPLE ex rel. STANDARD BILL POSTING CO. v. HASTINGS,

Building Inspector.

STANDARD BILL POSTING CO. v. CITY OF NEWBURGH et al.

(Supreme Court, Special Term, Orange County. August 13, 1912.)

1. MUNICIPAL CORPORATIONS (§ 625*)-POLICE POWER-ORDINANCES-REASON

ABLENESS.

The police power of a city may only be exercised in a reasonable manner, and so as not to do unnecessary or unreasonable injury or damage to any citizen or to property rights.

[Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1378, 1379; Dec. Dig. § 625.*]

2. CONSTITUTIONAL LAW (§ 92*)-EMINENT DOMAIN (§ 2*)-MUNICIPAL CORPORATIONS (§ 625*)-POLICE POWER-ORDINANCES-REASONABLENESS.

An ordinance providing that bill boards within a city can only be constructed of metal is unreasonable and invalid, as taking private property and destroying vested rights without compensation, when applied to a bill board erected of other material on private property, and not constituting a menace to persons lawfully using the streets of the city, or endangering the public health or morals, and not constituting a nuisance. [Ed. Note. For other cases, see Constitutional Law, Cent. Dig. §§ 174, 175, 178-180, 207, 225-227, 237; Dec. Dig. § 92;* Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. § 2;* Municipal Corporations, Cent. Dig. §§ 1378, 1379; Dec. Dig. § 625.*]

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

3. MUNICIPAL CORPORATIONS (§ 602*)-POLICE POWER-ORDINANCES-REA

SONABLENESS.

An ordinance providing that bill boards within a city shall be constructed of metal only applies to the entire city, and cannot be sustained as a measure to prevent the spread of fire by such a structure.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 602.*]

4. MUNICIPAL CORPORATIONS (§ 602*)--POLICE POWER-OrdinanCES-REASON

ABLENESS.

The provision in an ordinance regulating the erection of bill boards in a city that no bill board more than five feet in height shall be erected without permission of the common council is valid, because it does not absolutely prohibit the erection of bill boards more than five feet high, but leaves the matter to the judgment of the city authorities.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 602.*1

5. MUNICIPAL CORPORATIONS (8 602*)-POLICE POWER-PUBLIC NUISANCES. The council of a city has no authority to declare a structure a nuisance unless it is such in fact, and an ordinance declaring that bill boards not constructed of metal shall be a nuisance is invalid, for the question of nuisance depends on the facts of each case.

[Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 602 *1

Mandamus by the People, on the relation of the Standard Bill Posting Company, against T. James Hastings, as Building Inspector of the City of Newburgh, and injunction by said relator against the City of Newburgh, John B. Corwin, as Mayor, and others. Motions for a peremptory writ of mandamus and for an injunction pendente lite granted.

Hirschberg & Hirschberg, of Newburgh, for plaintiff and relator. Graham Witschief, of Newburgh, for defendant and respondents. TOMPKINS, J. We have here two motions, argued and submitted together. The first is for an injunction pendente lite, in a suit in equity brought to restrain the city of Newburgh and its officers from, removing and destroying a bill board owned by the plaintiff, a corporation engaged in the advertising business. The second is a motion for a peremptory writ of mandamus to compel the building inspector of the city of Newburgh to forthwith approve plans for, and consent to the construction of, a closed fence or bill board, which the relator, Standard Bill Posting Company, has planned to erect within the limits of the city of Newburgh.

The parties have agreed upon all of the facts involved in both the action and proceeding, and necessary to the decision of these two motions. Both motions involve the construction and validity of a certain ordinance recently enacted by the common council of the city of Newburgh, which reads as follows:

An ordinance to regulate the construction of closed fences, signs and bill boards within the city of Newburgh.

The city council of the city of Newburgh does ordain as follows:

Sec. 1. No person or corporation shall hereafter erect any tight or closed fence, sign or bill board or any structure designed or intended for purposes •For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes