
    The People ex rel. Edward M. Goring v. The President, etc., of the Village of Wappingers Falls.
    (Supreme Court — Dutchess Special Term.
    June, 1894.)
    The fact that no nominations were made for an office does not take away " the right of the electors to fill such office by their votes.
    An election to an office is not invalid because such office was not named in the notice of election or upon the official ballot.
    At an election in the defendant village the official ballots contained no reference to the office of police justice, although an election to fill such office was to be had at that time in accordance with the statute and resolution of the board of trustees, nor was such office named in the notice of election, no nominations having been made therefor. Notwithstanding this, forty-four votes were cast for the relator by pasters upon the official ballots. Held, that relator’s election was valid, and that he was entitled to the office.
    The charter of the village of Wappingers Falls, in Dutchess county, provides for a police justice in that village,, In 1890 Thomas A. Gurney was elected police justice of the village for a full term of four years. He resigned after a few months’ service. Hp to March thirteenth of this year no successor was ever elected or appointed by the board of trustees of the village to fill the vacancy so caused. The term for which Mr. Gurney had been elected expired in March, 1894. The village authorities did not give any notice nor call for the election of a police justice in the annual election notice, nor was any nomination made for the office by any political party, nor was any independent nomination made under or in pursuance of the Election Law. The official ballots provided by the village authorities did not contain the name of the office, nor was any blank left on the official ballot where the voter could name a choice for the office. No nomination of any kind was made for the office prior to election day, but forty-four of the official ballots contained votes by paster as follows : “ For Police Justice, Edward M. Goring.” The total number of votes polled was about 350, and no other candidate for police justice was voted for, and the forty-four votes received by Hr. Goring were canvassed for him. Within a few days he filed his oath of office with the village clerk, and subsequently demanded of the board of trustees that they furnish him with a court room, and that they fix his salary as such police justice. The trustees refused to comply with Hr. Goring’s request, or to recognize him as the police justice of the village. Application was thereupon made for a peremptory writ of mandamus against the village authorities.
    
      Bernard J. Tinney, for relator.
    
      Joseph F. Barnard, for the village.
   Gaynor, J.

The village of Wappingers Falls was incorporated under the general act for the incorporation of villages. It is provided in section 17 of the said act, as amended, that the trustees of any village of a population of 3,000 or more may decide to have a police justice for the village, to be elected every four years (Chap. 291, Laws 1870), and on January 6, 1890, the trustees of this village passed a resolution, in accordance with the statute, that a police justice for the village should be elected at the next village election, to occur on the third Tuesday of Harcli, 1890, and at every fourth annual election thereafter, the term of office to be four years. At the annual election held on the third Tuesday of Harch, 1894, the petitioner was the only person voted for for such 'office. He received forty-four votes, which were duly counted and certified. It is claimed, however, that the petitioner was not validly elected, and is not entitled to fill the office, and the president and trustees of the village refuse to provide him with a court room or fix his salary, which it is their duty to do if he was elected. The trustees gave no notice in advance of the election that a police justice would be voted for, and no nomination of a candidate for the office was made by any political party, nor was any independent nomination made therefor, as provided by the Ballot Law. §§ 56, 57. In short, no nomination was made for the office. Also, the name of the office of police justice was not printed on the official ballots. From these omissions the learned counsel for the trustees contends that no one could be legally voted for at the election, and that, therefore, the petitioner was not elected. There seems to be no foundation for the contention. In respect of the omission to give notice of the election of police justice, I am referred to tio provision of law requiring notice, and I find nene in the Ballot Law. The requirement of section 62. is only that all nominations to office he posted. But even if certain officials were charged with the giving o‘f such notice, and failed to do so, that would not prevent or invalidate the election. Election notices were quite generally required before the adoption of our present Ballot Law, but it was uniformly held that where the time of election to fill an office was designated by the Constitution, or by a statute, that in itself was notice which all electors had to heed, and the omission of the official notice was not material. People ex rel. Davies v. Cowles, 13 N. Y. 350; People v. O’Brien, 38 id. 193 ; People ex rel. Smith v. Schiellein, 95 id. 124. This is still the rule. The statute, as has been seen, provides that this office should exist in the village, and be filled at the village elections if the trustees should pass a resolution to have the office, and they did so. Hence, the electors had the statute and the resolution as notice. That no one was nominated for the office may seem singular, but that could not take from the electors the right to fill the office by their votes. There is room for the contention that voting would be less partisan and more intelligent at local elections, and that local offices would be better filled, if there were no nominations. Nomination to office was not formerly essential to an election, nor does our present Ballot Law make it so. Nor is the fact that the name of the office was not printed on the official ballots material. The contention is that it was properly omitted for the reason that it could not be voted for- because there were no nominations for it. There is nothing in the Ballot Law to sustain this contention. It is otherwise; for section 82, after providing that “ there shall be provided as many different kinds of official ballots ” as there are political parties or groups of independent electors making nominations, requires in the case of every election that “ the names of all the offices to be filled thereat shall he printed ” on each kind of ballot; and the same section further provides that if the full number of candidates for the offices specified on the ballots shall not have been nominated by any political party or independent electors for whom a ballot is printed, 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 ¿lectors who voted for the petitioner did so by means of pasters, designating the office and the person voted for to fill it. They had a right to vote, notwithstanding the omission of the official ballots to designate the office. Ballot Law, § 104.

Let a peremptory writ issue.  