
    PEOPLE ex rel. SCHWAGER v. MacLEAN.
    
      N. Y. Supreme Court, First District, Chambers;
    
      October, 1890.
    1. Elections; ballot act of 1890/ ballots of independent candidate.] The' ballot act of 1890 (c. 262), does not clearly give the persons designated in a certificate of nomination, filed under section 5, to represent, the signers thereof, the right to compel under section, 17, the printing of more than one ballot, containing the name of such candidate, and an application for a peremptory mandamus to compel the-printing of two ballots will be denied.
    2. Mandamus ; peremptory, when granted.] The rule that a peremptory writ of mandamus will not be granted in the firstinstance unless, it appears that this applicant has a clear and unquestioned legal, right to the relief asked for,—followed.
    Motion for a peremptory writ of mandamus.
    August C. Sehwager was nominated for alderman in the* nineteenth Assembly District in the city and county of Hew York, by a certificate filed with the county clerk, signed by upwards of one hundred qualified voters of the-district, as provided by section 5 of the Ballot Act of 1890,, ■ c. 272. The certificate designated three persons to represent, the signers, and they filed a written consent and request with the police hoard of the city of New York, that two different kinds of ballots should be prepared, printed and distributed in the Nineteenth Assembly District, one ballot containing the name of the republican, and the other, the name of the democratic candidate for Congress, together with the name of Schwager, and the candidates for other offices already put in nomination by the democratic and republican parties.
    The police board refused to comply with such request upon the ground that the statute gave the right to demand the printing of only one ballot.
    Schwager, therefore, applied for a peremptory mandamus against Charles F. MacLean and others composing the police board to print two ballots as requested.
    
      Henry R. Beekman and Lewis L. Delafield, for the relator.
    
      Charles Blandy, for the respondents.
   Ingraham, J.

It is settled that a peremptory writ of mandamus will not be granted in the first instance unless it appears that the applicant has a clear and unquestioned legal right to the relief asked for. That when a remedy of this character is invoked there must be a clear and unquestioned legal right” (People v. Supervisors, 64 N. Y. 604; People v. Wendel, 71 Id. 173).

I think the only thing that is clear is that thp construction to be given to the act is extremely doubtful.

The whole argument of the relator rests, not upon any express provision of the ballot act, but upon the intention of the legislature as indicated by an examination of the “ whole ground plan ” of the act. It has been held that, under the 17th section of the act in question, authority to give a direction to the police commissioners as to the names to be placed upon a ticket given by the individuals designated by the persons nominating a candidate can be inferred from the provision which provides that no name or names of any } candidate shall be placed upon a ticket without the consent of such designated representative. See opinion by Mr. Justice Bartlett, in People v. Kaiser (ante p. 462), where he says : “ The plain import of the prohibition against placing any other name upon the ticket of the independent candidate without the approval of the designated representative of the signers is that such representative may select a name to be placed thereon.”

The respondent has adopted this construction of the act, and has offered to place upon the ballot of the relator such candidates for the other offices as the persons designated in the certificate of nomination shall require, but the relator insists that the respondents are bound to print arid distribute as many different kinds of ballots as the designated representatives -of the persons signing the certificate of nomination require, so that each independent candidate can have his name printed upon the ballot of each of the regular political parties, and also select such combination of nominated ■candidates as he chooses, and require a ballot printed and distributed containing each of such combinations; for, if he can require more than one ballot to be furnished, there is no reason why he cannot require as many as there are different combinations of the nominated candidates possible.

I can hardly conceive that the legislature could have intended to have given such a power to the persons nominating an independent candidate and would not so hold unless ¡such intent plainly appeared in the law.

Section 17 of the act, after providing that no name shall be placed upon the ticket of an independent candidate except with the consent of the designated representatives, provides that there shall be as many separate kinds of ballots as there .■are different political parties represented by certificates, as ■provided by section 3 of the act, and as there are different political or other names represented by certificates as pro-vided by section 5 of the act, and then continues as follows : ■“ There shall also be as many different kinds of ballots as may be required to comply with the directions hereinbefore authorized of the person or persons designated and appointed, •as provided in section 5 of this act, upon certificates of nomination.”

It is difficult to understand just what was intended by 'the clause just quoted. The ballot of the political party nomination and of the independent nominations has been provided for, and, except the implied authority to require the tickets of an independent candidate to be filled up, there is no authority given'anywhere for the designated individuals to authorize anything. There is certainly no direction that any party or candidate shall have more than one ballot, ■or that the designated individuals, by giving directions which they are nowhere authorized to give, can require additional ballots to be printed and distributed. The clause that has been held to give the designated representative power to require the names of nominated candidates to be placed upon the ballot, speaks of the tickets in the singular. It is one ticket put in nomination that is to be filled up, and I cannot see that the provision that there shall also be as many kind of ballots as may be required to comply with the direction thereinbefore authorized of the designated representative requires more than one ballot for each candidate.

Nor do I think that the spirit of the act requires such a construction. Provision is made for nomination's-by party conventions and for independent nominations by voters, and the printing of the ballots with the name of each party; but provision is also made for substituting the name of the independent candidate by the voter upon any of the ballots. The voter is given ten minutes for that purpose, and is allowed to either write the name of any candidate that he wishes to vote for on the ballot or use a paster. The fact that an independent candidate is not upon all the ballots does not prevent a voter from voting for him, and there is .nothing in either the title or the spirit of" the act which- ro•quircs such a construction to be given to it.

It is therefore clear that the relator has not a clear legal" right to the relief asked for, and that the application must. ■ be denied. 
      
       That is one-half the democratic inspectors. .
     