him as 'Life Long Democrat' on the official ballot might mislead voters to assume he was. Allowance of that sort of practice could lead to ballot chaos and render harm to our fundamental process of government. In re Greene, 9 App.Div. 223, 41 N.Y.S. 177 (1896), differs materially from the situation before us on its facts. It has itself been confined to those facts by a later opinion, Marcantionio v. Hefferman, 192 Misc. 868, 83 N.Y.S.2d 367 (1948), which upheld a statutory provision quite similar to the present issue.
Finally, plaintiff contends that Rev.Stat. 19:14-12, empowers the county clerk to use his discretion in positioning the names of the independent candidates on the official ballot for the General Election. The sole ground for this is the fourth paragraph of Rev.Stat. 19:14-12, which reads:
'The position which the names of candidates, and bracketed groups of names of candidates nominated by petition for all offices, shall have upon the general election ballot, shall be determined by the county clerks in their respective counties.'
Actually the above language is sharply restricted by the fifth and eighth paragraphs of this statute where it is stated that:
'Where there is but one person to be elected to an office, the names of the several candidates who have filed petitions for such office shall be written upon cards of the same size, substance and thickness. The cards shall be placed in a covered box with an aperture in the top large enough to admit a man's hand and to allow the cards to be drawn therefrom. The box shall be turned and shaken thoroughly to mix the cards and the cards shall be withdrawn one at a time.
'The name or names of the candidate or bracketed group of candidates first drawn from the box shall be printed directly below the proper title of the office for which they were nominated, and the name or names of the candidate or bracketed group of candidates next drawn shall be printed next in order, and so on, until the last name or bracketed groups of names shall be drawn from the box.'
In the context of the law the county clerk has no discretion regarding the drawing of lots for the order of independent candidates for an office where there is more than one candidate therefor. See Perry v. Giuliano, supra, p. 553, 135 A.2d 24. The mechanics of the drawing so carefully detailed make it very clear that all independent candidates have an equal chance to be drawn first in their group and to be so placed on the ballot.
We find no merit in the point.
As we noted after the conclusion of oral argument, we are gravely concerned over the absence as parties to this suit of the major political parties and their candidates who are on the ballot before us and whose rights are definitely involved. We recognized the substantial problem raised in that phase of the litigation but because even if it were solved, the questions on the merits would still remain, we preferred to deal with the latter directly.
The above will supplement the short opinion delivered from the bench September 14, 1962, because of the urgency of the matter, and the order of dismissal entered that day. Findings of Fact and Conclusions of Law sufficiently appear in this opinion. No separate Findings of Fact and Conclusions of Law will be filed.
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