
    The People ex rel. Edward M. Goring, Resp’t, v. The President and Board of Trustees of the Village of Wappingers Falls, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed February 5, 1895.)
    
    1. Election—Ballots.
    ■ If the official, charged with, the duty, neglects to print upon the official ballot the name of an office which, under the law, is to be filled at the election for which the official ballots were prepared, a qualified voter may write or paste on the proper official ballot such office and the name of any person to fill it whom the voter desires.
    2. Same—Mandamus.
    Where, under such circumstances, the relator received forty-four votes for police justice, which was the whole number of votes cast for such office, a writ of peremptory mandamus was properly granted, requiring the board of trustees to recognize him as a police justice, but not to fix the salary of the office.
    Appeal from an order of the general term of the supreme court in the. second judicial department, which, modified and affirmed as modified an order of special term directing a peremptory mandamus to issue commanding defendant, among other things, to recognize the relator as police justice of the village of Wappingers Falls.
    
      Frederick Barnard, for app’lt; Bernard J. Tinney, for resp’t.
    
      
      Affirming, 60 St. Rep. 577.
    
   Gray,

January, 1890, the board of trustees of the village of Wappingers Falls, acting under the authority conferred by § 17 of chapter 291 of the Laws of 1870, being the general act for the incorporation of villages,'passed a resolution that a police justice should be elected at the next village election to occur on the third Tuesday of March, 1890, and every four years thereafter. A police justice was, accordingly, elected in March, 1890, for the full term of four years. After holding his office for a short time he resigned and the vacancy remained unfilled for the balance of the term for which he had been elected. At the annual election held on the third Tuesday of March, 1894, the respondent, Goring, received forty-four votes for the office of police justice; being the whole number of votes cast for that office. The trustees of the village have, however, refused to recognize the election of the respondent, or to make proper provision for the administration of the office and because of their action, or inaction, he made application for a peremptory writ of mandamus; which should command and require them to provide necessary room, blanks, books, etc., and to determine the annual salary; The trustees opposed-the granting of the writ, upon the ground that no notice of the election of a police justice was given in the spring of 1894 and that the official ballots of neither party contained the name of the office, or of any candidate to be voted therefor.

The court at special term granted the application and upon appeal the general term affirmed the order of the special term; except that it struck out so much of the order as directed the trustees of the village to fix the salary of the office; holding that that matter was one within their discretion.

The only question upon this, appeal is as to the correctness of the order below in granting the peremptory writ, which, in effect, commanded the appellants to recognize the relator as a police justice.

The position of the appellants is that, because the village trustees, in giving notice for the election of village officers, did not specify the office of police justice and because the official ballots printed by the village clerk did not contain the name of the office-of police justice, no votes could be received or counted for that office. This position is rested upon certain language in the Election Law of 1892 (chapter 680). Section"104 provides'that, “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 effect of that provision, it is'said, is to confine the voter to writing,, or pasting, the name of any person, for whom he desire to vote, to-an office which is named in the official ballot. I do not think that, the legislature intended any such result to follow. If the clerk, or other officer, charged with the duty, neglect to print upon the official ballot the name of an office, which, under the law, was to. be filled at the election for which the official ballots were prepared, the qualified voter will not, thereby, be deprived of his constitutional right to vote for any person he chooses for such an office. In the previous Ballot Beform 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.” With reference to that provision of law we had occasion to say, lately, in People ex rel. Bradley v. Shaw, 133 N. Y. 493; 45 St. Rep. 866, that to hold that a voter could not vote for any candidate whom he chose, notwithstanding that his candidate failed to receive a nomination by a political party, etc., pursuant to the requirements of a certain provision of that law, would be to disfranchise, or to disqualify the citizen as a voter, or a candidate, and would affect the law with the taint of unconstitutionality in such respects.

In the present case, whether the omission of the name of the office of police justice was due to forgetfulness, or to intention, is quite immaterial. Section 82 of the Election Law made it the duty of the clerk to furnish official ballots containing the names of all the offices to be'filled at the election. The non-performance -of that duty, with respect to the office of police justice, could not affect the fact that such ¿n office, under the law, was one to be filled at the election to be held pursuant to official notice. Section 104, notwithstanding an apparent limitation in its language as to the offices which might be voted for, must be construed as authorizing the voter to write, or paste, on the proper official ballot the •office, which the law required to be filled at the election, and the name of any person to fill it whom the voter desires. In contemplation of law, the official ballot prepared by the voter is deemed to contain the names of all the offices to be filled at the election and if, by omission, clerical or otherwise, an office is not named upon it, the voter is warranted in writing, or pasting, upon it the name of the office and the person whom he desires to vote for as the incumbent thereof. To construe the law otherwise would be to affect its validity. The'Constitution confers upon -every citizen, meeting the requirements specified therein, the right to vote at elections for all offices that are elective by the people and there is no power in the legislature to take away the right so •conferred. 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.

The order appealed from should be affirmed, with costs.

All concur.

Order affirmed.  