206 Misc. 709 | N.Y. Sup. Ct. | 1954
The petitioners seek an order directing the Secretary of State to accept for filing a certificate filling the vacancy in the designation made by the Democratic county committee of the County of Schenectady for the office of State senator for the Thirty-eighth Senatorial District. The petitioners, John English and William L. Mayotte, are respectively the chairman and secretary of the said Democratic county committee and constitute the majority of the committee on vacancies named in designation petitions filed with the Secretary of State.
The facts here are undisputed. Following the reapportionment of the senatorial districts of the State of New York, the Thirty-eighth District was so reconstituted as to contain two counties, Schenectady and Schoharie. Schenectady County had been represented in the Senate for many years by Thomas F. Campbell, a Bepublican. The petitioner, John English, .states
It is the respondent’s contention that the Campbell designating petition was invalid and void ab initio and that the committee on vacancies named therein has no right or authority to file a new certificate of designation or of substitution. Section 137 of the Election Law, commonly known as the WilsonPakula Law, provides under subdivision 1 that: “ No petition for the purpose of designating any person as a candidate for party nomination at a primary election shall he valid unless the person so designated shall be enrolled as a member of the party referred to in said designating petition at the time of the filing of the petition.” Subdivision 4 states: " Notwithstanding the
In the present instance the political subdivision involved was the Thirty-eighth Senatorial District comprising the counties of Schenectady and Schoharie. Paragraph 3 of the by-laws and regulations of the Democratic party of the State of New York as amended states in part as follows:
“ Where a political subdivision is coterminous with or less than the limits of, but wholly within an entire county, the members of the county committee from such political subdivision shall constitute the committee in and for such political subdivision.
‘ ‘ If the political subdivision consists of more than one county the district committee for such subdivision shall be composed of the chairman of the county committee of the various counties or parts of counties situated within the political subdivision.”
Therefore, under the by-laws and regulations of the Democratic State committee, the district committee for the Thirty-eighth Senatorial District consisted of the two county chairmen. I do not agree with the respondent that a formal meeting of the two should have been called, but mutual consent to the indorsement could be arrived at by other means and if nothing further had been done, the telephone agreement would have been sufficient, but the statute provides that this agreement must result in a written certificate of authorization which must be filed "with the Secretary of State. If that had been done, then the later actions of the Schoharie County chairman in not indorsing Campbell would not have prevented the acceptance of the filing of the Campbell petition.
Search reveals nothing in the Election Law which permits disapproval and rescission by a political committee when once a designation of a person has been made by such political party or political committee and such designee has formally accepted such designation. (Matter of Smith v. Board of Elections, 196 Misc. 109.)
After the expiration of the statutory filing period, however, the designating petition, until then voidable, became void and section 140 of the Election Law covering the filling of vacancies in designations would seem to imply the existence of a valid designation petition as a prerequisite to any valid action on the part of the committee to fill vacancies. Here the petition being ineffective to accomplish the designation of Campbell there was accordingly no vacancy to fill and the committee had no further authority to act.
I am of the opinion that in filing the petition, authorization and acceptance, Messrs. English and Mayotte acted in good faith. They had not only, the almost unanimous approval of the Schenectady County Democratic committee, but also the verbal assurance of the chairman of the Schoharie County Democratic committee for the Campbell candidacy. No ulterior motive can be charged to the petitioners and I am satisfied that they were motivated solely by a desire to carry out the wishes of a substantial majority of the voters of their party and to return to office a public official who had served the people faithfully and well for many years.
The language of the statute, however, is clear and definite. It does not itself require construction and therefore no discretion is left for the court. The petitioners and members of the Democratic party who wish to vote for Mr. Wollner are not denied that right because they can still do so by writing his name upon the primary ballot at the primary election. If they are sufficiently interested to make him the nominee they can vote for him even though his name is not printed on the ballot.
The prayer for relief demanded by the petitioners is, therefore, denied, without costs.