189 A.D. 140 | N.Y. App. Div. | 1919
The application for an order directing the board of elections to print the name of Patrick J. McGrath on the official ballot as the candidate of the Home Rule party for justice of the Municipal Court was presented on an order to show cause, based on an affidavit made by him and on two letters from the board of elections annexed thereto. So far as material to the points presented for decision, the affidavit shows that on the 11th day of September, 1919, a certificate of independent nomination of the Home Rule League, nominating the affiant for said office, “was duly filed” with said board; that it was “ in form, as provided for by law and contained the names of about 3,964 electors, residents of the said Municipal Court District, all of whom were duly qualified to sign the said certificate of independent nomination, as deponent is informed and verily believes; ” that the number of electors essential to file such a certificate was 2,210; that on the 14th day of September, 1919, objections to said certificate were duly filed with said board by one De Hayes, claiming to be an elector in said district; that on the 15th day of September, 1919, affiant obtained an order directing said De Hayes to show cause at Special Term why a hearing on the objectio.ns should not be had, and on the 17th of September, 1919, said application was denied on the ground that it was premature, and an appeal from that order was taken to this court where it was then pending; that the objections filed by De Hayes have not been heard or determined and are still pending; that on the 17th of September, 1919, the board of elections objected to the name by which the independent body was designated on said certificate of nomination and that the name was thereafter duly changed to “ Home Rule; ” that on the 8th of October, 1919, the affiant received
This court is reversing herewith, without opinion, the former order denying the application as premature and remitting the matter to the Special Term for a hearing on the merits. (189 App. Div. 897.) Subdivision 6 of section 123 of the Election Law (as amd. by Laws of 1916, chap. 537) provides, among other things, that the name of no person signing such a certificate of nomination shall be counted unless such person shall be registered on one of the days of registration. The last day of registration was October eleventh. In view of this statutory provision it is manifest that the right of a person so nominated to have his name printed on the official ballot depends upon, among other things, whether, before or after filing the certificate of nomination, a sufficient number of electors signing same shall have registered or shall register, and consequently, without proof of that essential fact, the application of the appellant could in no event be granted. The appellant did not show that a sufficient number of his nominators had registered; and inasmuch as the period for registering had not expired, the court denied the application as premature. Of course this appellant was not entitled then, in any event, to an order requiring the printing of his name on the official ballot, for his due nomination for the office depended on whether or not a sufficient number of his nominators registered for the election. We are of opinion, however, that this being a matter of public interest, and the time for the determination of objections being comparatively
■ The motion for the order from which this appeal was taken was also made before the last day of registration, and it does not appear that the requisite number of those who signed the nominating certificate had registered. The appellant did not ask for a hearing on the objections but prayed a peremptory order requiring the printing of his name on the ballot on the ground that the board was without jurisdiction to determine that it would not be so printed as evidenced by its letter of October seventh or otherwise. It is quite evident that the petitioner in making his second application proceeded in disregard of the objections raised to the certificate of nomination, for in his affidavit he does not attempt to meet them and does not show that the certificate of nomination was executed in the manner and form required by law or that it was sufficient. The certificate of nomination is neither annexed to nor made a part of the motion papers and sufficient facts were not shown to enable the court to decide the questions arising on the objections thereto. The appellant attempts to justify his second application to the court by said letter of October seventh, which he seems to regard as removing his nominating certificate from the files of the board. It, however, had no such effect and the board had no authority to pass upon the objections filed.
From the enactment of the Election Law of 1892 (Chap. 680, §§ 56, 57, 65, as amd. by Laws of 1895, chap. 810) and the Election Law of 1896, being chapter 909 of the Laws of 1896 (See §§ 56, 57), until the amendments made to the present Election Law by chapter 649 of the Laws of 1911, the board with whom independent nominating certificates were filed was authorized, in the first instance, to pass upon the objections filed thereto and was likewise authorized to determine'controversies with respect to party emblems. Under the former statute, as under the present law, a written objection to any
By the amendment of 1895 to section 65 of the act of 1892 and in the enactment of the Election Law of 1896 the provision to the effect that the certificate should be deemed valid unless objections thereto were filed was omitted. Under the statute as it existed before this provision was omitted it was held that where no objection was filed to such certificate the nomination was to be deemed valid and the official or officials with whom the certificate was filed . had no jurisdiction in the premises other than the ministerial duties enjoined on them by the statute, on the assumption that the nomination was valid. (Matter of Cowie, 25 Abb. N. C. 455. See, also, People ex rel. Tuers v. Dooling, 69 Misc. Rep. 391; affd., 141 App. Div. 918.) It thus appears that while the board of elections was authorized in the first instance to pass upon the objections duly filed to the nominating certificates, it has not, at least not prior to 1895, jurisdiction to inquire into the validity of such nominating certificates if they were in apparent conformity with the provisions of the statute. But the authority of the board of elections to pass upon the objections filed to nominating certificates and to determine conflicts with respect to party emblems was repealed by the said chapter 649 of the Laws of 1911, and by section 134 of the Election Law, as amended by that act, it was provided that the question raised by a written objection to a certificate of nomination should be passed upon as provided in section 125; and in section 125, as thus amended, it was provided that “ any question arising with reference ” to any device or party name, “ or with reference to the construction, sufficiency, validity or legality of any such certificate ” should be determined “ upon the application of any citizen ” by the Supreme Court or a
The duty of executing the election laws, however, is expressly enjoined upon the board by section 190 of the Election Law (as amd. by Laws of 1919, chap. 369). Therefore, it is its duty to refrain from acting upon papers purporting to be certificates- of nomination which do not appear on the face thereof to be executed in the form and manner required by law. In other words, it must refrain from acting upon a certificate which is invalid on its face; but the board has no judicial power to investigate or decide with respect to the validity of such a certificate depending on matters dehors the record. That the former rule that all certificates to which no objection is filed are to be deemed valid no longer obtains is shown by implication by Matter of Greenwald v. Boyle (179 App. Div. 672; affd., 221 N. Y. 688), where the board, as here, gave notice after a certificate had been on file with it eleven days, and no objection thereto had been filed, that it deemed the certificate insufficient and the court instead" of deciding that it was too late to question the sufficiency of the certificate or that the court had no authority» or duty in the premises other than to act upon the certificate as valid, proceeded to decide whether or not the certificate was valid and sufficient and decided that it was and ordered the board to so regard it. The same is implied from Matter of Stoddard (158 App. Div. 525), wherein it was held that the validity of such a certificate could not be decided until after the registration was complete, although that was
We might well affirm the order on the ground that the second application was made in disregard of the objections, but the objections were presented by the former application and we think that both applications should be remitted to the Special Term for a hearing on the merits with respect to the objections filed, the sufficiency of the certificate of nomination on the face of the papers required to be filed andof the registration of nominators, but without costs.
Clarke, P. J., Dowling, Smith and Merrell, JJ., concurred.
Order reversed and matter remitted to the Special Term for a hearing on the merits.
