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(56 Misc. Rep. 112.)

and 140 New York State Reporter

PEOPLE ex rel. SIMMONS v. HAM, County Clerk.
(Supreme Court, Special Term, Dutchess County. October 19, 1907.)

ELECTIONS-NOMINATIONS-CERTIFICATE-FILING.

Where a certificate of nominations, made by a town convention was delivered to the town clerk, to be by him filed with the county clerk on the town clerk's demand that it was his duty to file the same, and the town clerk did not mail the certificate immediately on its receipt, but retained the same for nearly 24 hours, whereby the certificate failed to reach the county clerk within the time required by election law, Laws 1896, p. 930, c. 909, § 65, the county clerk will nevertheless, under such circumstances, be required to place on the ballot the names of the candidates so certified. [Ed. Note. For cases in point, see Cent. Dig. vol. 18, Elections, § 127.] Application by the people, on the relation of Charles B. Simmons, against John M. Ham, county clerk, to require him to print on the official ballot the names of certain candidates for town offices. Application granted.

George Overocker (George Wood, of counsel), for petitioner.
Edward Stillman, for defendant.

John F. Ringwood, for Clement Sweet.

MORSCHAUSER, J. Application is made why the Dutchess county clerk should not print upon the regular official ballot to be printed for the ensuing election the names of the Republican candidates for the town officers of the town of Milan, this county, as filed by the party nomination certificate with him October 12, 1907, and why he should not print the name therein certified on the regular ticket.

It is claimed that the certificates were not filed in his office until the 12th day of October, 1907, 24 days prior to election, when the same should have been filed on the 11th day of October, 1907. The town convention, which nominated these persons named in the certificate, was held on October 10th, and the persons nominated for offices were supervisor, justice of the peace, assessor, collector, and constable, and the certificate was received by the clerk on the 12th day of October, and filed by him in his office. It appears from the affidavit of Cyrus F. Morehouse, the present supervisor, who presided at the convention, that after the convention he took both certificates to the office of William Cookingham, the town clerk of said town, and intended to file the other with the Dutchess county clerk on the following day, October 11th, which was the last day for filing such certificate; that said town clerk demanded of Morehouse, the other certificate, telling him, Morehouse, that it was his, the town clerk's, duty to file it with the Dutchess county clerk, and Morehouse, believing that the town clerk knew the law applicable to the case, delivered the other certificate to the town clerk, to be by him filed with the Dutchess county clerk. The statements set forth in this affidavit are not contradicted, and I must assume that these statements are true. The certificate did not reach the county clerk's office until the morning of the 12th of October.

It further appears by this affidavit that the town clerk did not mail this certificate to the county clerk until after 5 o'clock on the after

noon of October 11th, so that it must be assumed that he retained the certificates from October 10th, in the afternoon, until 5 o'clock in the afternoon of October 11th. There is no affidavit filed by the clerk why it was not mailed and retained that length of time, instead of at once mailing it when he received it from Morehouse. It was evidently kept or delayed until late in the afternoon of October 11th, and then, as it appears, was mailed and received by the county clerk the next day. There is nothing to show that the town clerk mailed the certificate immediately upon receipt of the same, but it appears that it was mailed nearly 24 hours after its receipt by him. If he knew the law, and it is presumed he does, he knew that the same had to be filed in the county clerk's office by October 11, 1907, and he must have known that the certificate would have to be mailed immediately by him or it could not reach the clerk's office until it was too late for filing.

It has been held that the law requiring the filing of certificates of nomination is mandatory. In Matter of Cuddeback, 3 App. Div. 103, 39 N. Y. Supp. 388, this case has been cited. In McMullen v. Berean, 29 Misc. Rep. 446, 60 N. Y. Supp. 578, and in Matter of McDonald, 25 Misc. Rep. 84, 54 N. Y. Supp. 690, 693, Mr. Justice Chester

states:

"I do not doubt that in a proper case a court or a justice has the power to direct the filing of a certificate nunc pro tunc, but the facts proven here did not, in my opinion, justify such an order in this case."

The Cuddeback Case was decided in 1895. The McDonald Case was decided in 1898. In the Matter of Halpin, 108 App. Div. 276, 277, 95 N. Y. Supp. 611, 615, it was held:

"We cannot peer into the future and foresee all conditions that may arise, and the various phases in which, by certain exigencies, cases may be presented for a construction of the election law that may justify or require a strained construction of the statute to prevent the disfranchisement of electors or enforce the just claims of political parties or candidates. We shall therefore refrain from expressing any opinion on whether, in any emergency, the court would indulge in so-called judicial legislation, and, if so, what circumstances would constitute such emergency. We are all agreed that no such emergency is now presented. There has been no fraud or accident to prevent the filing of a certificate of nomination duly and timely authorized by the convention, and there has been no neglect or refusal on the part of any public board or official to perform a statutory duty."

This case was decided in the First Department in 1905. In reading the last part of this quotation, it will be noted that the court stated: "That it would refrain from expressing any opinion on whether, in any emergency, the court would indulge in so-called judicial legislation, and, if so, what circumstances would constitute such emergency. We are all agreed that no such emergency is now presented. There has been no fraud or accident to prevent the filing of a certificate."

If this means anything, it means that the court in an emergency would indulge in so-called judicial legislation, and, if so, that circumstances would constitute such emergency. It particularly mentioned. that there has been "no fraud or accident" to prevent the filing of a certificate of nomination duly and timely authorized by the convention. From the affidavit it appears that the town clerk retained this certificate for 24 hours without mailing it, and the certificate did not

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reach the clerk's office until after the time within which the same was to be filed pursuant to the statute, and it must have been presumed he knew the law in this respect, and it must be by fraud or a design that the certificate did not reach the Dutchess county clerk's office in sufficient time to be filed. If the certificate had been mailed by him when he received it from Morehouse, and was delayed in reaching the clerk's office in the mail, then it was an accident. The affidavits, as submitted, are silent upon this, and I cannot say that it was an accident. It appears from the moving affidavits that he received the paper, and that it was not mailed until the next day. Where was it in the meantime? I think on the facts as they appear in the affidavits the “emergency is now presented" to entitle the applicant to the relief asked for. It is also claimed on the part of the applicant that the objection was not filed "within three days after filing of such certificate," as is provided by section 65 of the Election Law (Laws 1896, p. 930, c. 909), and that such objection was not filed until October 16th, and, to come within the provision of the law, such objection should have been filed on the 15th day of October. As this case requires a hasty decision, I do not think it is necessary that I should pass upon this question at this time.

I think in furtherance of justice the applicant is entitled to the relief asked for, and the county clerk should print on the official ballot, to be printed for the ensuing election, the names of the republican candidates for town officers of the town of Milan as filed.

(121 App. Div. 645.)

PEOPLE ex rel. HAINER v. KEEPER OF PRISON OF SEVENTH DIST. MAGISTRATE'S COURT et al.

(Supreme Court, Appellate Division, First Department.

October 25, 1907.)

1. MUNICIPAL CORPORATIONS-STREETS-REGULATIONS-SPEED OF MOTOR VEHICLES-CRIMINAL PROSECUTION-STATUTES.

Laws 1904, p. 1311, c. 538, relating to the use of roads by motor vehicles (section 3, subd. 1), forbids a greater rate of speed in closely built up districts than one mile in six minutes. Section 4, subd. 3, provides that local authorities of cities may, subject to the provision of the act, limit by ordinance the speed of motor vehicles in their streets on condition that the ordinance fix the same speed limitation for all other vehicles, which shall not be less than one mile in six minutes, and a similar and no greater penalty for violation thereof by motor vehicles than for violations by other vehicles, and that the city place conspicuously on each main public highway signs indicating the rate of speed allowed there, which penalties shall, during the existence of the ordinance, supersede those specified by section 6 of the act, which provides (subdivision 1) that a violation of the provisions of section 3, above, shall be deemed a misdemeanor, punishable by fine, or fine and imprisonment. Subsequent to the passage of this act, the city of New York passed an ordinance (chapter 12, Rules of the Road, § 454) regulating the rate of speed of motor vehicles in the city, fixing the same speed limit for motor vehicles as for others and the same penalties for violation thereof. It is not shown that the city complied with the provisions of the act as to the erection of signboards giving the rate of speed allowed. Held, that the failure to comply with the condition relating to signboards was fatal to the ordinance, so that the penalties described therein did not supersede those provided by section 6, subd. 1, and hence one charged with violating sec

tion 6, subd. 1, in the city of New York, was not entitled to a summary trial before a city magistrate as for a violation of a city ordinance, but could be held for trial at the Court of Special Sessions.

2. SAME-Burden of Proof.

Under these circumstances, the condition of the act not complied with being in a distinct clause from that containing the provision for a punishment for a violation of the act, the burden of proof was on the party claiming the benefit of the ordinance to establish its validity, and that it had become effective as in conformity with the conditions prescribed by the act.

Appeal from Special Term.

Application by William H. Hainer for writ of habeas corpus against the keeper of the prison of the Seventh district magistrate's court. From an order sustaining a writ and ordering the discharge of relator from custody (106 N. Y. Supp. 960), defendant appeals. Reversed, writ dismissed, and relator remanded to custody.

Argued before PATTERSON, P. J., and INGRAHAM, LAUGHLIN, CLARKE, and HOUGHTON, JJ.

William Travers Jerome, Dist. Atty. (Robert C. Taylor, of counsel), for appellant.

Flammer & Flammer (Edward F. Flammer, of counsel), for respondent.

CLARKE, J. The relator was arrested charged with having operated an automobile in and along West Seventy-Second street in the city and county of New York, the territory contiguous to said street being closely built up, at a rate of speed greater than one mile in six minutes, in violation of subdivision 1 of section 3 of chapter 538, p. 1314, of the Laws of 1904, and, having been arraigned before a city magistrate, he was held for trial at the Court of Special Sessions. thereupon sued out a writ of habeas corpus, and upon the said writ, return, and traverse, he was discharged from custody, and from the order of discharge the people appeal.

Chapter 538, p. 1311, of the Laws of 1904, is entitled "An act in relation to the registration and identification of motor vehicles and the use of the public highways by such vehicles." It provides, inter alia, as follows:

Section 1, subd. 2: "Definitions.

*

(2) Public highways' shall include any highway. county road, state road, public street, avenue, alley, park, driveway or public place in any city, village or town. (3) 'Closely built up' shall mean (a) the territory of a city, village or town contiguous to a public highway which is at that point built up with structures devoted to business; (b) the territory of a city, village or town contiguous to a public highway not devoted to business, where for not less than one-quarter of a mile the dwelling houses on such highway average less than one hundred feet apart."

Section 3, subd. 1:

"Speed Permitted. No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or the safety of any property; or in any event on any public highway where the territory contiguous thereto is closely built up, at a greater rate than one mile in six minutes, or elsewhere in a city or vil

and 140 New York State Reporter

lage at a greater rate than one mile in four minutes, or elsewhere outside of a city or village at a greater rate than one mile in three minutes, subject, however, to the other provisions of this act.”

Section 4, subd. 3:

"Local Ordinances Prohibited. Subject to the provisions of this act, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring of any owner or operator of a motor vehicle any license or permit to use the public highways, or prescribing a slower rate of speed than herein specified at which such vehicles may be operated, or the use of the public highways, contrary to or inconsistent with the provisions of this act; and all such ordinances, rules or regulations now in force are hereby declared to be of no validity or effect; provided, however, that the local authorities of cities and incorporated villages may limit by ordinance, rule or regulation hereafter adopted the speed of motor vehicles on the public highways, on condition that such ordinance, rule or regulation shall also fix the same speed limitation for all other vehicles, such speed limitation not to be in any case less than one mile in six minutes in incorporated villages, and on further condition that such city or village shall also have placed conspicuously on each main public highway where the city or village line crosses the same and on every main highway where the rate of speed changes, signs of sufficient size to be easily readable by a person using the highway, bearing the words 'Slow down to miles' (the rate being inserted), and also an arrow pointing in the direction where the speed is to be reduced or changed, and also on further condition that such ordinance, rule or regulation shall fix the penalties for violation thereof similar to and no greater than those fixed by such local authorities for violations of speed limitation by any other vehicles than motor vehicles, which penalties shall during the existence of the ordinance, rule or regulation supersede those specified in section 6 of this act, and provided further, that nothing in this act contained shall be construed as limiting the power of local authorities to make, enforce and maintain, further ordinances, rules or regulations, affecting motor vehicles which are offered to the public for hire."

of

Section 6, subd. 1:

"Penalties for Excessive Speed, etc. The violation of any of the provisions section 3 of this act shall be deemed a misdemeanor punishable by a fine not exceeding $100 for the first offence, and punishable by a fine of not less than fifty dollars nor more than $100, or imprisonment not exceeding thirty days, or both, for a second offence, and punishable by a fine of not less than $100 nor more than $250 and imprisonment not exceeding thirty days for a third or subsequent offence."

There is no contention but that West Seventy-Second street in the city and county of New York is a public street and closely built up, within the definition of subdivision 2 of section 1 of the act, and that upon such street, under subdivision 1 of section 3 of said act, a greater speed than one mile in six minutes is not permitted, and that a violation thereof, under subdivision 1 of section 6, is a misdemeanor properly triable at the Court of Special Sessions. Therefore, if the provisions of this act alone are to be taken into consideration, the action of the city magistrate in holding the relator for trial at Special Sessions was proper, and the writ of habeas corpus should have been dismissed, and the relator remanded.

The board of aldermen of the city of New York adopted and the mayor on the 16th of November, 1906, approved, the following ordinances: Chapter 12, Rules of the Road:

"Sec. 454. Speed of Vehicles. The following rates of speed through the streets of the city shall not be exceeded, that is, eight miles an hour by

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