
    The People ex rel. Edward M. Goring, Resp’t, v. The President and Trustees of the Village of Wappinger’s Falls, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 10, 1894.)
    
    1. Elections—Ballots.
    A voter may write, on the official ballot, the name of the person for whom he desires to vote for an office which is not, but should have been thereon.
    2. Mandamus—Police Justice.
    The court, upon an application for a mandamus to compel the recognition of relator as police justice of a village, has no power to direct the trustees to fix the salary of the office.
    
      Joseph F. Barnard, for app’lts; Bernard J. Tinney, for resp't.
   Brown, 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. Section 104 of the election law (chapter 680, Laws 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 before 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. Yre .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 tho-t 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 ; 48 St. Rep. 533) ; and that part of it should be stricken out, and, so modified it should be affirmed, without costs of appeal.

Cullen, J.

(concurring).—I agree with the opinion of the presiding justice that an interpretation of section 104 of the election law which would limit the right of voters to vote only for offices which may be named on the official ballot, or only for candidates who may have been put in nomination by the modes prescribed by that law, would render this provision of the section unconstitutional and void. The section is general, and applicable to elections for all officers. As to two classes of public offices, it seems to me too clear for debate that the legislature cannot deny the voter the right to vote, or add to the qualifications prescribed for candidates, dependent on the action of election officials or nominating conventions. By the federal constitution (§ 2, art. 1) :

“ (2) No person shall be a representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that state in which he shall be chosen.”

By section 4 of the same article :

“ (1) The times, places and manner of holding elections for senators and representatives, shall be prescribed in each state by the legislature thereof; but the congress may at any time, by law make or alter such regulations, except as to the places of choosing senators.”

Congress has acted under this authority, and prescribed the time of holding elections of representatives. How can the state-deny the right of any qualified voter to vote at the time prescribed ? As to the qualifications of representatives, though the constitutional provisions are wholly in the negative, still they are plainly meant to prescribe the only conditions of eligibility, and are exclusive. How can the state prescribe that the candidates; must have been nominated by'a certain number of voters for an appointed period before the election ? Such provisions would not relate merely to the manner of holding the election, but plainly be limitations on the eligibility of the candidate. He may not have moved into the state, and become an inhabitant thereof, until the day before election, and yet he would be constitutionally eligible for the office. Those considerations also apply to those offices which the constitution of the state ordains shall be filled by election. At an early period, under our present constitution, the question arose whether the election of a justice of the supreme court to fill a vacancy occurring after the notice given by the secretary of state of the offices to be filled at the approaching election was valid. It was held that the election was valid, notwithstanding that no notice thereof was given by the secretary of state. People v. Cowles, 13 N. Y. 350. The authority of this case has never been questioned. In the constitutional convention of 1867, it was acknowledged as a correct exposition of the law and, to avoid any difficulty from lack of sufficent notice to the-voters, the constitution was amended so that vacancies in the judicial offices created by it are directed to be filled only at elections happening three months after the occurrence of the vacany.. But as to the other elective offices of the constitution the old rule remains in force. As to offices not constitutional, but created by the legislature, the legislature may prescribe qualifications for the incumbents of such offices. People v. Platt, 117 N. Y. 159; 27 St. Rep. 149. We assume, however, that as to such offices the qualifications must bear some relation to the duties of the office, and be not merely arbitrary. The office here in dispute is a local office. By the constitution, it must be filled by election or appointment, as the legislature shall direct. Under this authority,, the legislature determined that the office should be elective, and on that determination “ the office fell within the scope and terms; of the constitutional provisions applicable to elections by the people.” In re Gage, 141 N. Y. 112; 56 St. Rep. 662. A scheme that would permit the town election officers or nominating conventions to determine whether the office should be filled or not would be neither providing for an election nor for an appointment, and it is only one of these two methods-that the legislature can adopt. The order appealed from should be affirmed, with $10 costs.

Dykman, J.

(dissenting).—Under a republican form of government, such as ours, the fundamental principle is that all political power is vested in the people. In a general way, it is said that the people are the sovereigns ; but, in strictness of language, the aggregate collected will of the people is the sovereign authority. It follows, therefore, that every man has the right to participate in the exercise of the sovereign power, by the exertion of the right to vote for representatives. That is the portion of political power belonging to every qualified elector. But the people have placed limitations and restraints upon themselves in the exercise of the elective franchise. They have prescribed certain forms for the conduct of elections.They have declared that they themselves cannot vote without certain qualifications, nor except at specific times and places, and in a particular manner. The controversy in this case has reference to the limitations placed upon the qualfied electors by the late election law of this state. The facts in the case are these: This is an appeal from an order made at the special term granting a peremptory writ of mandamus against the president and trustees of the village of Wappinger’s Falls, commanding them to recognize the relator as police justice of that village, and to fix his salary as such. The village of Wappinger’s Falls is incorporated under the general act for the incorporation of villages (chapter 291 of the Laws of 1870), and § 17 of that act, (as amended by Laws of 1871, o. 688) provides that:

“ The trustees * * * may, whenever in their opinion public interest demands it, at any time not less than 30 days preceding the next annual election for village officers, direct that at such election, and at every fourth annual election thereafter, there shall be elected a police justice, who shall be a resident of the village in which he shall be elected, and who shall hold office for four years.”

In 1890, in pursuance of that statute, the trustees passed a resolution that a police justice be elected in that village in the spring election of 1890, and every four years thereafter. A police justice was elected at that time, who, shortly after his election, resigned his office, and there was no order for an election to fill the vacancy at the next election, and no police justice was ever elected or appointed thereafter. In 1894 the trustees gave a notice of the election of the village officers, but did not specify the office of police justice among them. The political parties nominated candidates, but no nomination was made for police justice by either of such parties, or by certificate. Ths official ballots were printed by -the village clerk, and distributed in due time. No official ballot containing either the designation of the office of police justice as one to be voted for, or the name of any candidate therefor, was printed. When the votes were counted, there appeared on 44 of the regular official ballots, by a paster slip, the following: For Police Justice, Edward W. Goring.”

The question is whether the relator was duly elected to the office he claims, and that question must be determined by the general election law. Police justices, in villages, are elective officers. Both political and independent nominations for municipal offices must be filed with the clerk of the village. Election Law (Laws 1892, 'chap. 680), .§ 82. There must be as many official ballots as there are names represented upon the certificates filed. § 82. The scheme and policy of the election law, as applicable to this case, are to require official ballots for all elective officers to be voted for at the village election to be furnished by the village clerk. § 86. And no ballot, except one bearing the official indorsement, shall be counted. Every elector is therefore compelled to vote an official ballot, if he votes at all. After he enters the voting booth, and not before, nor elsewhere, “ the name of any person for whom the voter desires to vote for an 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, or the paster ballot containing the names of all the candidates for whom the voter may vote for all such offices, may be pasted thereon.” § 104. It thus appears that the voter is confined to writing or pasting the name of any person for whom he desires to vote for an office named in the official ballot. In other words, he can only vote for a person for an office designated upon the official ballot. This construction results from the application bf the maxim, “ Expressio unius est exclusio alterius." The thing expressed here as permissible is the writing or pasting upon the official ballot the name of any person for whom the voter desires to vote, for any office named thereon. That provision implies the exclusion of other methods, and inhibits the voting for an office not named on the official ballot. The general argument that such a construction may disfranchise an elector, or prevent the exercise of his volition, is not forceful. It is admitted by all that none but official ballots can be cast, and" if there be no ballots for an office, except in emergencies not presented in this case, it follows that no-votes can be thrown therefor. Such we deem to be the effect of the election law, and as neither of the official ballots, at the election where the relator claims he was elected, contained the name of the office of police justice, it' follows that the votes cast for him were improperly counted, and gave him no right to the office. ■

We think, also, that the command of the writ was too broad. It undertakes to command the trustees to fix the salary of the police .justice, and our understanding of the statute in relation to the compensation of such police justice is that his fees are a charge upon the village, and must he audited and allowed in the same manner as other village charges, except such police justice shall be allowed an annual salary, fixed by the board of trustees; and they were empowered to fix and establish an annual salary to be paid to the police justice, by resolution to be entered in their minutes, which salary, when so fixed, was to be in lieu of fees to which the justice might otherwise be entitled; and it left the alternative between the two modes of compensation to the discretion and determination of the trustees, and it is beyond the province of the court to compel the exercise of such election. In other words, the court had no power to compel the trustees to fix the salary of the police justice, under the statute. The sole power to create a salary, or let the compensation depend on the village* charter, rested on the trustees.

The order appealed from should be reversed, with $10 costs and disbursements, and the motion for a mandamus denied, with $10 costs.  