
    Matter of the Independence League Nominations for Erie County Officers and for Members of Assembly in and for the Assembly Districts Thereof.
    (Supreme Court, Erie Special Term,
    October, 1906.)
    Election of officers: Nominations, etc. — Independent nominations —
    Form and sufficiency of certificates, Review by court — Time within which review may be had.
    Separate sheets, containing a certificate of nomination and signatures thereto, together constitute but a single certificate; and the fact that some of them were delivered to the commissioner of elections on one day and the rest the day following, which was the last day for filing such certificates, does not render the, certificate invalid.
    Where assembly certificates, when originally filed, did not contain the name of the office, as required by section 56 of the Election Law (L. 1896, ch. 909), they were defective only and not wholly void; and the committee appointed on their face to supply defects, fill vacancies, etc. could supply such defect.
    The places of residence which the subscribers of such a certificate respectively add to their signatures are conclusive; and, where it appears upon the face of the certificate that the place of residence of a subscriber is outside the district, the commissioner should reject his name and may not resort to extrinsic evidence to establish the fact that he resides in the district.
    Undecipherable and illegible signatures should be rejected, although the commissioner of elections may use the notary’s certificate to aid him in reading them; and illiterate electors should sign by a mark, properly authenticated.
    Where sheets of two certificates for separate offices are joined together, the signatures being the same on each, it should appear from the notary’s certificate that persons who subscribed both certificates appeared and made oath before such officer as to each certificate. Mere identity of names on both certificates is not sufficient evidence that both were properly authenticated, where the notary’s certificate refers to “ the foregoing certificate ” only and there is but one notary’s certificate.
    After the time for filing certificates • to fill vacancies has expired, the jurisdiction of the court to entertain summary proceedings to review the determination of the commissioner has terminated and it will not entertain a proceeding to determine whether certificates are void, or only defective, when the time to correct defects has gone by.
    
      This is a review under the Election Law of the decision of the commissioner of elections that such certificates are valid, and overruling objections made thereto.
    H. W. Killeen, Thomas 0. Burke, and J. W. Fisher, for objectors.
    Wallace Thayer, A. G. Jackson, and Lewis Stockton, for nominators.
   Pound, J.

This matter is presented to the court in an informal manner, the objectors and the committee designated by the Independence League to fill vacancies, etc., appearing in open court with the commissioner of elections and submitting various questions of law to the court for its determination, the commissioner having overruled pro forma the objections based thereon, for the purpose of obtaining the direction of the court. The court, in deciding such questions will be guided by the principle that the provisions of the Election Law in reference to certificates of nomination by independent bodies should be liberally construed so as to promote and not to hinder the independence of voters at public elections. Matter of McClosky, 21 Misc. Rep. 365.

First. The chief objection enumerated is that said certificates or some of them are not valid certificates for the reason that, as originally filed, they did not contain the number of names required by law to make a nomination. In all such cases the various sheets containing the certificate of nomination were not all delivered to the commissioner at one time, but part were delivered to the commissioner on October sixteenth and part on the day following, which was the last day for filing such certificates.

There is but one certificate of nomination for each office, which may consist of several separate sheets bound together, each containing the printed form of certificate and signatures, duly authenticated. Matter of Bulger, 48 Mise. Rep. 584. “ The signatures to the certificate of nomination need not all be appended to one paper.” Election Law, § 57. It is not, in my judgment, a valid objection that some of such sheets were delivered to the commissioner before the certificate was complete on its face. If the certificate is on its face void for lack of sufficient names, the commissioner should not file it as a certificate of nomination, but should reject it, whether objections are made thereto or not; but, if the certificate, otherwise regular, is completed by the addition of sufficient names thereto within the time fixed by law for filing certificates of nomination, it then becomes prima facie a valid certificate. Meanwhile the sheets of paper containing the certificate with signatures duly authenticated may remain in the office of the commissioner, if he has not had an opportunity to count the number of names and satisfy himself as to its validity. It does not become a certificate of nomination until it is complete in' this respect, bio particular sanctity attaches to the act of delivering to the commissioner all the sheets of paper at one time as a single act. The commissioner may, on discovering the defect of names when the certificate is first presented to him, return the certificate to the nominators, who would then clearly have the right to redeliver it to the commissioner with additional names, within the time fixed by law, if they were able to do so.

Second. The assembly certificates originally filed did not contain the name of the office, as required by section 56 of the Election Law, but read: “First (Second or Third, etc., as the case might be) Assembly District,” followed by the name, residence and place of business of the candidate nominated. This defect was in each case supplied by the committee appointed on the face of such certificates to supply defects, fill vacancies, etc., pursuant to the provisions of section '66 of the Election Law; but it is objected that such certificates were not defective, merely, but wholly void, and, therefore, that such committee had under the law no power to make such corrections, they being authorized to do so only where the certificate is “ defective but not wholly void.” In my opinion these certificates were defective but not wholly void. Member of assembly is the only officer to be elected in Erie county this fall from an assembly district. Ho" one was or could be misled as to the intent of the nominators who filed such certificates of nomination by the omission. The question is a close one and doubts should, if possible, be resolved in favor of the nominators.

Third. The law provides {§ 57) that the certificate shall be subscribed by electors of the district, "each of whom shall add to his signature his place of residence and * * * make oath that he has truly stated his residence.” When it appears on the face of- the certificate that the place of residence, as stated and sworn to by the subscriber, is outside the district for which the nomination is made, it is the duty of the commissioner to reject such names and extrinsic evidence will not be received to establish that such electors reside in the district. The certificate must show on its face that it is subscribed by the requisite number of resident electors, and if it is defective in this respect the certificate is invalid. The commissioner of elections and the court may take notice of the boundaries of election districts and of the location of street numbers in regard thereto, or may receive evidence that the places of residence as given are outside the-district for which the nomination is made.

Fourth. The commissioner of elections must satisfy himself from an examination of the certificate itself that the notary has certified that the electors who subscribed the certificate appeared before such notary and made oath" as required by section 57 of the Election Law. He should reject wholly undecipherable and illegible signatures, although he may use the notary’s certificate to aid him in reading the signatures. Illiterate electors should sign by mark, properly authenticated, and not by an absolutely unintelligible scrawl

Where sheets of two certificates for separate offices — as for senator and for assemblyman — are joined together, the signatures being the same to each sheet, it should appear from the notary’s certificate that persons who subscribed both certificates appeared and made oath before such officer as to each such certificate. Mere identity of names on both certificates so joined on separate sheets is not sufficient evidence that both certificates were properly authenticated, when the notary’s certificate refers to “ the foregoing certificate ” only and there is but one notary’s certificate.

Note. These objections having been submitted and disposed of on the last day fixed for filing certificates to fill vacancies, the parties appeared before the court on the day following for a ruling on the question whether names of electors on sheets containing the certificate of nomination for member of assembly, which had been bound together with sheets containing the certificate of nomination for senator, could now be counted as a part of the certificate of nomination for member of assembly, the error having been just now discovered. I hold that the jurisdiction of the court to entertain summary proceedings to review the determination of the commissioner had terminated, and declined to entertain the application or decide a moot question. The time for the committee to supply the defect in the certificate of nomination for member of assembly, objected to on the previous day as containing less than five hundred names, had expired, and the court had no jurisdiction to act for said committee and supply the defect by a summary order directing such sheets to be taken from the certificate of nomination of senator and attached to the certificate of nomination of member of assembly. I was o‘f the opinion that such certificate was under the circumstances defective, but not void, but that the time to correct defects had gone by, and that the certificate of nomination must be considered as being the various sheets bound together and filed as one certificate, and not as being the various loose and misplaced sheets in the office of the commissioner.

No question as to authority to use the emblem of the Independence League arose on the proceedings.

Ordered accordingly.  