The evening world., 1893-10-30
DECIDES AGAINST kEMPNER
Police Commissioners Need Not
Put His Name on Ballots.
Justice Barrett Defines What Fnti-
tics n Candidate to Recognition.

Justice Barrett, of the Supreme Court.
has refused. without costs. - grant
Otto Kempner, who wants to be elected
to the Assembly as an Independent
Democrat from the Seventh District, and
Herman d klinker, writs of mandamus
compelling the Board OF Police Commits
sioners to accept certificates Of nomi-
ma tons and print official ballots.
The Judge says In his opinion "Tne
point here involved seems at first to be
a small one. But when the effect Of a
ruling one way or the other is consId-
cred, it becomes apparent that the ques-
ton is q.lte important. 1t is important,
for instance. that citizens should be
facilitated in the exercise of their rights
TO present ind pendent candidates. ana
that they shoIli not be ~obstructed by
too narrow or technical an interpreta-
ton of the statute.
Upon the other hand. 1t Is equally i'm
portant that the expenditure Of public
money should be kept within their legal
bounds. and that taxpayers should not
be burdened with the expense of printing
ballots for candidates who are without
substance or genuine support. Checks
are placed upon mere frivolous candl-
ddCieS by the provisions Of the statut"
with regard 10 the hummer of voters
who are required to set tne machinery
OF independent nominations In motion.
The requirements of the statute on this
head should be strictly comoItel with.
else the checks upon Idle or unsubstan-
tial candidates at once break down. The
language Of the statute as hearing upon
, the present question, is that the nominal
ton shall he made by a certificate signed
and acknowledged by such voters, each
his place of r~esIurnce, and max" oath
that he 10 such voter and has truly
stated such residence.
The sole safeguard Is here plainly
the oath. 1t would be easy enOugh to
prove signatures to a certificate without
an oath, and thus to evade The statute.
The difficulty would be in inducing a
large number of people to commit per-
jury. Clearly. therefore. the oath should
be rigidly demanded both in form and
substance, For there should he no pos.
sible question ms to its adequacy Ia
punish the nominator in case his state,
ments as to residence and voting rights
are untrue.
THE oath here eXactCd H. not such as
Is reuuirod to affect registration or upon
II challenge when the vote IL offered,
There the oath Is Xix" that administerrd
to II witness in. open court. The officers
VINO execute the law are present ana
the rights flowing from the oath i'm,
m"diately follow. Such an oath Is not
and in the nature of things cannot b",
in writing; nor need the atlantis state.
mcnt be formally recorded. 1t Is en-
tirely different, however, wnere the Oatr
Is taken for the very purpose of maxim,
Il record, and especially where it /,
taken before an officer who has no rclu
tiun directly or indirectly TO the election
machinery.
I'm the latter case the oath to have an,
value towards e~ftectG'ting the statutory
ing and h" signed hv the nominNtor"
Henry Seldner, counsel for Mr.. Elinker
said to-day that he would ask Gov
Flower To convene II special term OF tn,
SUnrcmp Court, General Term, in Orlc
" might appeal the motion of hi
client. .