126 N.Y.S. 386 | N.Y. App. Div. | 1910
On September 13, 1910, .a primary eléction for delegates to various conventions and for members of the county general committee for the year 1911 of the Democratic party was held in the nineteenth Assembly district of the county Of Hew- York. On the first of October, upon the petition of James J. Hines, and certain supporting. affidavits, an order to show cause was made, returnable on October fourth, which provided as follows •: “ Let the Board of Elections of the City and County of Hew York and their respective Boards of Primary Election Districts of the'19 th Assembly District,.which acted as such during the aforesaid primary election of tlie Democratic Party on the ,13th day of September, 1910, or their attorneys, show cause * * * why, (1) the actions and neglect of the said Board of Elections and Inspectors should not be
The allegations of the petition-or the complaint, as it is called, may be classified under three heads : (1) That there were eighty-one ballots which had wrongfully been declared void and return'ed as not counted by the inspectors, of which seventy were headed by the name of the complainant and eleven by that of his opponent, Ahearn ; (2) that all of the ballots for the ticket headed by Ahearn were void and illegal because Ahearn’s name was printed thereon in large letters and in black-faced type, so that it could be discerned through the back of the ballot when folded, so that the watchers were advised of every ballot cast for that ticket when cast,- which was a- violation of the secrecy of the ballot and gave an opportunity for fraud; (3) general allegations of fraudulent practices which vitiated the election.
The learned court denied the application by an order made on the 24th of October, 1910." The first ground of complaint was disposed of by showing that as Ahearn had received 1,084 votes and Hines 922, a majority for Ahearn of 162, if all the ballots returned .as void were counted as claimed, Ahearn would still have a majority of 92 votes and the result would not be changed.
As to the second ground, it having been shown that the paper upon which the ballots were printed complied with the law, and
We aye in entire accord with these two conclusions and think nothing need be added to the opinion of the Special Term thereon. The general allegations of fraud in the conduct of the election were not considered in the opinion, and require consideration by us.
The, conventions to which the delegates were declared to have been elected have been held, and the candidates therein nominated have been voted for at the general election held on the eighth day of'Hovember. It is obvious that nothing that the court could now do touching, the primary and the conventions could have any effect upon the candidates who have been successful at the general election. But the general committee of the Democratic party, members of which from the nineteenth Assembly district were voted for and declared elected at the primary election in question, hold office for the ensuing year, and their right to such office is, therefore, not an academic but a live and present question. The inquiry, therefore, is, can such right and title to office be tested xby the proceeding at bar ?
' It is brought under section 70 of the Election Law, being chapter 17 of the Consolidated Laws (Laws of 1909, chap. 22), and provides as follows: “ Jurisdiction of and review by the courts. Any action or neglect of the officers or members of a political convention or committee or of any inspector of primary election or of any public officer or board with regard to "the right of any person to participate in a primary election, convention or committee, or to enroll "with any party, or with regard to any. right given to or duty prescribed for any voter, political committee, political convention, offi
The order to show cause herein was served upon the board of elections. That board is ’ the custodian of primary records with which is to be filed, under section 61 of the Election Law (as amd. by Laws of 19G9, chap. 240), the written statement of the result for each election district in each primary district made by the board of primary inspectors; and it is its duty, under section 63, to proceed to canvass the statements so filed and to issue certificates of the result. Such duties are purely ministerial (People ex rel. Calihan v. Hunt, 75 App. Div. 33) and no power is conferred upon the board to go behind the returns or statements of the. boards of primary inspectors so filed and determine whether or not frauds have been perpetrated at the polls. So that the power given to the court by section 70, supra, to review any action or neglect of the officers or members of a board by the appropriate remedy of mandamus or certiorari or summary jurisdiction must be confined to such matters as the board being reviewed had jurisdiction of. .
The board of elections, as the custodian of primary records, did nothing which it was not its duty to do, nor did it fail or neglect to do anything which it was its duty to do touching the fraudulent practices alluded to in the complaint. Its duty to the voters at the polls and the boards of primary election inspectors was to file the statements, to canvass the same upon the face thereof, to certify the
In People ex rel. Coffey v. Democratic Committee (164 N. Y. 335) Parker, Ch. J., said: ^The term of ‘office’ of a member of the general committee, for such the statute declares it to be, is for a period of one year, but is to commence at a time fixed by the' rules and regulations of the party, éxcept that it shall not be later than the first day of January succeeding their election. And the general committee is commanded to meet and organize ‘ on the day fixed by the rules and regulations of the party.’ At that meeting a member elected at the preceding town or ward primary may appear to assume- the duties of the office to which he has been elected, and the production of a certificate of election from the ‘ custodian of primary records, or a duplicate thereof, shall be sufficient to entitle the person named therein to be admitted to the * * * committee to which he shall have been elected.’ * * * The statute that calls the general committee into existence makes the certificate of the ‘ custodian of primary records ’ proof of his election and right to exercise the duties of a member of the committee.”
We think the Office of member of the county general committee is such an office that title thereto may be questioned in the courts upon the ground of fraud at the election. If the term of office has commenced, then the procedure must, it seems to us, be of a similar character to that taken in the case of a public officer or of an officer of a corporation.. It has been held that a court of equity has no jurisdiction to try title to office. “ -Elections to office, whether public or corporate, were never in England nor in this State, up to the date of the Oode, matters of equitable consideration. They depended only on legal inquiries and legal principles, and no instance
In Matter of Rabbitt v. Garand (89 App. Div. 119) a proceeding had been instituted to review the action or neglect of the board of inspectors of primary elections in an election district upon allegations of fraud and misconduct of the inspectors, who appeared upon the return of the order to show Cause, raised a preliminary objection to the jurisdiction of the court arid also filed an answer. The preliminary objection was overruled and testimony was taken before the justice establishing the truth of the allegations. The answer was subsequently withdrawn so that upon the appeal the question presented was solely as to the jurisdiction of the court. It was under these circumstances that the court said : “ If the acts of these inspectors complained of and proven here do not present a case where an 1 action or neglect ’ of an inspector of primary election or of a public officer or board with regard to a right given to any elector and with regard to a duty prescribed for an officer or board by the law, may be summarily reviewed by the court, or a justice thereof and be remedied by such an order as justice requires, it would be difficult.to conceive an action or neglect, under the law, which is. It was the duty of the inspectors to make a true and honest statement of the votes cast, and it was the right of every elector to have that duty faithfully performed ; ” and held, “ The justice before whom this case was heard had jurisdiction under the facts appearing here of the subject-matter, and by standing on their objection to the jurisdiction of the justice the appellants should not now he heard on the merits. The Legislature had the power,to provide a summary remedy to review the action or neglect of inspectors and boards under the Primary Election Law, and the facts and circumstances appearing here were such that justice required the making of the order appealed from.”
This court also in Matter of Coughlin (137 App. Div. 283; affd. on opinion of Scott, J., 198 N. Y. 613) expressed the opinion that the court had power in a proper case to summarily set aside a fraudulent primary election and order a new election.
■ For these, reasons the order appealed from should be"affirmed, with ten dollars costs arid disbursements! .’
■Ingraham, P. J., Scott, Miller and Dowling, JJ„ concurred.'
Order affirmed, with ten dollars costs and disbursements; •
