In the Matter of the People ex rel. John H. Behrmann, Appellant, v. John R. Voorhis, President, and Others, Constituting the Board of Elections of the City of New York, Respondents

In the Matter of the People ex rel. John H. Behrmann, Appellant, v. John R. Voorhis, President, and Others, Constituting the Board of Elections of the City of New York, Respondents. Independent nominations may be made for aldermen in a district in New York city including only part of a ward. The provision of section 57 of the Election Law (Laws of 1890, chap. 909, as amd. by Laws of 1901, chap. 654) permitting the filing of “independent nominations of candidates for public office to be voted for only by the electors of a town or a ward of a city or a village,” authorizes the making of an independent nomination for the office of alderman in an aldermanic district in the city of New York which includes only part of a ward. Van Brunt, P. J., dissented. Appeal by the relator, John H. Behrmann, from an order of the Supreme Court, made at the New York Special Term, bearing date the 16th day of October, 1901, and entered in the office of the clerk of the county of New York, denying his application for an order directing the defendants to produce and file said relator’s certificate of independent nomination for the office of alderman in the forty-fourth aldermanic district. Section 57 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. '654), referred to in the opinion, provides in part as follows: “ Independent nominations of candidates for public office to be voted for by all the electors of the state can only be made by six thousand or more voters of the state ; provided, however, that in making up such number at least fifty electors in each county of the state (the counties of Fulton and Hamilton to be considered as one county) shall subscribe to the certificate provided for in this section. Independent nominations of candidates for municipal offices to be voted for by all the electors of a municipality can only be made if in a city of the first class by two thousand electors of such city ; if in cities of the second class by one thousand electors of such city, and in other cities by five hundred electors thereof. Independent nominations of candidates for a county office in a county in which there is a city of the first class can only be made by two thousand ejectors of such county. Independent nominations of candidates for public office other than municipal offices to be voted for in a district less than the whole state, but greater than a town or ward of a city, can only be made by one thousand electors or more of the district, except that five hundred voters or more of an assembly or school commissioner district, may make such nomination for member of assembly or school commissioner to be voted for in such district. Independent nominations of candidates for public office to be voted for only by the electors of a town, or a ward of a city, or a village, can only be made by one hundred electors or more of such town, ward or village, except that when such town, ward or village constitutes an assembly or school commissioner district, five hundred or more electors shall be required as above to make such nomination for member of assembly or school commissioner.” William N. Cohen, for the appellant. Horace H. Deming, the appellant’s counsel on the part of the Citizens’ Union. Arthur C. Butts, for the respondents. [MAJORITY — Hatch, J.:] Hatch, J.: The facts in this case are undisputed. The relator presented to the board of elections of the city of New York a petition signed by 130 electors of the forty-fourth aldermanic district of said city, placing him in ■ nomination for the -office of alderman of that district, and demanded that the same be filed under the statute as a certificate of independent nomination. The board refused to file the certificate, and an order was obtained requiring the members of said board to show cause why they should not produce the said certificate and why they should not file the same as a certificate of independent nomination. Upon the return of the order, the Special Term denied the motion, and from the order so made this appeal is taken. None of the facts alleged in the moving affidavits are disputed, and from them it appears that the aldermanic district in question is composed of five election districts located within the twenty-fourth ward of the city of New York. The revised charter of the city of New York (Laws of 1897, chap. 378, § 19, as amd. by Laws of 1901, chap. 466) creates seventy-three aldermanic districts, and the one in question embraces only about one-third of the said twenty-fourth ward. The decision of the Special Term is based, as appears from the opinion of the justice holding the term, upon the proposition that the Election Law (Laws of 1896, chap. 909, § 57, as amd. by Laws of 1901, chap. 654) makes no provision for independent nominations for the office of alderman; that neither the office of aider-man nor aldermanic district is mentioned in the statute, and, therefore, there is no authority in the section, which is the sole source of authority, for the making or filing of certificates of independent nominations in such cases. The section in question does not assume, in each instance, to name the particular office for which nominations may be made in the manner prescribed in the section. On the contrary, the provision relating to the offices for which candidates may be nominated is in general terms, the only exception being that which relates to a Member of Assembly and school commissioner they being the only offices named in the section in terms. It is apparent, therefore, that the failure to name the office of alderman, or failure to specify an aldermanic district, is not controlling of the question involved. The scheme of section 57 is quite plain, and it is evident that it was the legislative intent to confer the right to make independent nominations in the State at large and in every civil division thereof where an officer was to be elected, the intent being to confer upon a specific number of electors the right to make nominations for every office to be filled at any election, whether it be a State officer or one selected from the smallest division of the State. Such being the intent, it is plainly evident that the form of nomenclature used to designate a particular division is of small consequence where the purpose is to confer the right upon a given number of electors to nominate a particular officer. Under such circumstances, it is a. familiar rule of construction for courts to give force and effect"' to the intent of the Legislature, even though it involves the disregard of some words and the insertion of others, or so construing the language used as will permit of a conclusion in accordance with such intent. (People ex rel. Twenty-Third Street R. R. Co. v. Comrs. of Taxes, 95 N. Y. 554.) The purpose and object of the Election Law is to secure the rights of duly qualified electors, and neither to defeat nor abridge the enjoyment of such rights. And the statutory regulations are so to be construed as to secure the utmost freedom in this respect, consistent with such safeguards as have been found essential to prevent fraud. (People ex rel. Hirsh v. Wood, 148 N. Y. 147.) Whenever the right of the elector is clear, the courts have adopted the most liberal rule of construction in order that the right may be fully and completely exercised. (Matter of Emmet, 150 N. Y. 538 ; Matter of Hennessy, 164 id. 393.) The right to place persons in nomination for a public office rests upon the same basis as does the right of the elector to cast his vote and have the same counted. (Matter of Norton, 34 App. Div. 79.) Applying these rules of construction to the section in question, we have no difficulty in reaching the conclusion that the provision for nomination of candidates for public office to be voted for only by electors of a town, or a ward of a city, or a village, embraces within its scope the aldermanic district, even though it be not coterminous with a ward or of another civil division, if in fact it be embraced therein and form a part thereof. To hold otherwise would be to deprive the body of electors which the statute names as being competent to make a nomination from presenting candidates to be voted for in such civil division, and this would nullify the plain intent of the Legislature to confer upon the respective bodies of electors such right. A construction of this language which denies the right, or which limits its application to the election of an officer in a district coterminous with the bounds of a ward, would lead to a practical absurdity in its application to the civil divisions of the city of New York, wherein aldermanic candidates are selected. It appears from section 19 of the charter of Greater New York that there are four wards within the city in which the aldermanic districts are coterminous with the ward lines. In the sixty-nine other districts the division is different. A literal construction of the language of section 57 relating to the nomination of candidates to be voted for in wards would authorize independent nominations in four aldermanic districts, and deny the same right m the other sixty-nine. Such a result would be palpably absurd, and the construction of a statute which works a palpable absurdity will always be avoided. (Commonwealth v. Kimball, 24 Pick. 370.) It follows, if these views are sound, that the number of. qualified electors essential to make a nomination within a ward are sufficient to make a nomination for office in a division less than the ward but contained within it. In the present case, the certificate is signed by 130 electors, and was, therefore, sufficient to place the candidate in nomination for alderman, and it became the duty of the board of elections to file such certificate as an independent nomination. The order should, therefore, be reversed and a peremptory writ of mandamus be directed to issue. O’Brien, Ingraham and McLaughlin, JJ., concurred; Van Brunt, P. J., dissented. [DISSENT — Van Brunt, P. J. (dissenting) :] Van Brunt, P. J. (dissenting) : It is clear, and it seems to be conceded by the opinion of the majority of the court, that the relator’s case is not mentioned in the statute. But as this was probably an inadvertent omission upon the part of the framer of the statute and also of the Legislature, and would have probably been corrected had their attention been called to the omission, and as it would be a great hardship to deprive the relator of the benefits of the statute, the majority of this court propose to supply the omission of the Legislature and amend the statute to conform to what it thinks was the intention of that body, under the very transparent guise of construction, legislating into the statute provisions which it does not contain. I think that this should not be done. The power of legislation is not vested in the courts nor is it one of their functions to supply omissions which the Legislature has made in the conduct of its work. This is usurping a power not vested by the Constitution in the courts. Order reversed and peremptory writ of mandamus directed to issue.