Opinion
October 23, 1967
In this proceeding pursuant to CPLR article 78 to compel respondents to furnish to petitioner, without charge, copies of the voters' registration lists for the County of Nassau, petitioner appeals from a judgment of the Supreme Court, Nassau County, dated August 10, 1967, which dismissed the proceeding. Judgment reversed, on the law, without costs, and matter remitted to Special Term for further proceedings not inconsistent herewith. No questions of fact were considered on this appeal. Petitioner attacks the constitutionality of subdivision 5 of section 376 of the Election Law on the sole ground that the application of the definition of the term "party", contained in subdivision 4 of section 2 of the Election Law, to the use of that term in the said section 376 constitutes an unreasonable standard in distinguishing political organizations to whom respondents must send two voter registration lists, without charge, from those which must pay respondents for them. Concurrently, petitioner claims, in his brief in this court, that he is the County Chairman of the United for Peace Party and that, in accordance with the language of subdivision 5 of section 376 he is entitled to receive such lists. Hence, if petitioner is not the County Chairman of the United for Peace Party in Nassau County (cf. Election Law, §§ 12, 15), the proceeding at bar was properly dismissed without reaching the constitutional issue raised by petitioner. Accordingly, because petitioner did not allege at Special Term that he is the County Chairman in Nassau County of the United for Peace Party, we would affirm the order. However, a hearing should be held on petitioner's allegation, denied by respondents, that the sum at which respondents offered registration lists for sale was excessive. Our decision herein does not preclude petitioner from amending his petition, if he be so advised, to allege that he is the County Chairman of the United for Peace Party.
I agree with the majority that the petition was properly dismissed but deem this a reason for affirmance, not for reversal and remission for a hearing as to the excessiveness of respondents' charge of $1.25 per enrollment book. The question of excessiveness is plainly irrelevant since petitioner seeks copies of the books free of any charge, whether excessive or not. Moreover, the $1.25 charge is not so grossly high as to be patently excessive; and petitioner alleges no facts to support his claim of excessiveness. Also, the pleadings raise no constitutional issue.