137 N.Y.S. 718 | N.Y. App. Div. | 1912
Lead Opinion
We concur in the opinion of Mr. Justice Chester, delivered at Special Term, and desire to add only such observations as
The situation and points presented upon the argument of the appeal are in brief as follows: The National Progressive party, an independent organization not yet having ripened into a regular political party, has nominated for the coming election by petition a full State ticket and a more or less full ticket in the judicial, congressional, senatorial and the assembly districts, and counties throughout the State. In the third judicial district, which embraces within its boundaries several counties, congressional, senatorial and assembly districts, no nomination for justice of the Supreme Court was made. At an early stage of the formation of the National Progressive ■ party there was incorporated a voluntary association known as the National Progressive Party, Incorporated, which assumed jurisdiction to a greater or less extent over the actions of the National Progressive party itself. The president of the incorporated society was made chairman of the Progressive party of the State. Discussion was had amongst the incorporators of the National Progressive Party, Incorporated, and a committee of the third judicial district, which we assume was named at some proper meeting of the members of the National Progressive party, with respect to making a nomination for justice of the Supreme Court of the third judicial district, and
In Matter of Independent Nominations (186 N. Y. 266, 279) it was held that the certificate of an independent nomination first filed was entitled to preference over those subsequently filed. The petition being regular and being the one first filed we think it must be assumed that the signers were members of the National Progressive party, and that it cannot be assumed that they were not in good faith members of that party but were in fact members of either the Republican or Democratic party. On the contrary, it must be assumed, in the absence of proof, and in view of the statement under oath of each subscriber to the petition that it is his intention to support at the polls the candidacy of the person nominated in the foregoing certificate of nomination, that the signers of the petition were members of that party and had the right, as such, to make a nomination for that party under that party’s emblem, and that it cannot be assumed, in the absence of proof, that such peti-' tion was made by members of another party, or that it. was made in bad faith for the purpose of foisting upon the National Progressive party a candidate distasteful to the leaders or the members of the party, or for the purpose of aiding, a nominee or member of another party. The appellants insist that from
Believing as we do that the objection on the part of the committee was not sufficient to deprive the members of the party from making a nomination if they saw fit, and assuming, as we must, that the petition was signed by members of the Progressive party, it follows that it was sufficient to place the respondent in nomination. There was not sufficient proof in the act of the committees to show that the signers themselves were not members of the Progressive party or to cast upon the respondent the burden of showing that the signers were in fact members of the Progressive party. If we are correct in this conclusion, and correct in taking the concession of the appellants that 900 signers were sufficient to place the respondent in nomination, it then follows that the Secretary of State properly filed the petition, and that he should not be required to withdraw it from his files. In this aspect of the case the provisions of section 125 of the Election Law. (Consol. Laws, chap. II [Laws of 1909, chap. 22], as amd. by Laws of 1911, chap. 649) have no application, for there is no dispute with respect to who shall be entitled to the emblem, for no one has attempted or is attempting to use it except members of the National Progressive party. They themselves have the right to use it because it is their own emblem. The situation would be entirely different if it was proved, or if it Could be assumed, that the 900 signers of the petition were outsiders
It may be further said that it was not necessary that ,the same electors who signed the petitions for nominations for State officers for the Progressive party, or for any of the local offices within the third judicial district, should also sign a petition for nomination of a justice of the Supreme Court for that district. It would not have been proper to include in a petition nominating a justice of the Supreme Court other nominees who were not to be elected by such district, for it is improper to include in one petition candidates to be voted for in several districts not coterminous.. (Matter of Bennet, 116 App. Div. 138.)
It was, therefore, entirely regular that the petition for putting in nomination a justice of the Supreme Court should be a separate one and not complicated with the nomination of any other officers not elected fot that district.
Our conclusion is, in view of the concession of the appellants that a sufficient number had signed the petition to make it a lawful one, that the order should be affirmed, without costs, however.
All concurred, except Smith, P. J., and Betts, J., dissenting in memoranda.
Dissenting Opinion
I agree with Justice Betts that the petition requires 1,500 signatures to conform to the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 122, as amd. by Laws of 1911, chap. 891).. The concession by the attorney for the National Progressive party should not be deemed a waiver by other appellants of this fatal objection to the certificate of respondent. Aside from this, however, I vote for reversal
Dissenting Opinion
The Election Law provides as to nominations of this kind, in section 122, as follows: “Independent nominations of candidates for public office other than municipal offices to be voted for in a district less than the whole State, but greater than a town or ward of á city, can only be made by one thousand five hundred voters or more of the district.” (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 122, as amd. by Laws of 1911, chap. 891.) The nominating certificate filed contains 900 signatures. Authority is claimed for the Validity of this certificate, as to numbers, by the decision in People ex rel. Hotchkiss v. Smith (137 N. Y. Supp. 177; modified and affirmed on appeal to the Appellate Division, 152 App. Div. 514; modified and affirmed by the Court of Appeals, 206 N. Y. 281). That was a case brought on behalf of the officials in charge of the National Progressive party for a mandamus to compel the board of election commissioners of Putnam county to disregard that provision of the Election Law which requires 1,500 signatures to make an independent county nomination and 800 signatures to make an independent nomination for member of Assembly, on the ground that such provision is unconstitutional and void. The court at Special Term granted the writ so far as requiring the county board of elections to receive an independent certificate for the nominations of county officers if it contained the signatures of 500 members of the National Progressive party, and held that the requiremént of 1,500 names was unconstitutional, but not interfering with the provision requiring 800 signers to nominate a member of Assembly. It appeared that the county of
Thus it will be seen that so far as the Court of Appeals is concerned it has decided that 500 persons are sufficient to nominate a member of Assembly and a county officer. It has not decided, or attempted to decide, that 1,500 is an unreasonable number to require for the nomination of a justice of the Supreme Court. This court will take judicial notice that there are upwards of 125,000 voters in the third judicial district. If it should be decided that 1,500 is" an unreasonable number — the Election Law of 1896 required 1,000 signatures for an independent nomination in a district of this kind; the Election Law of 1899, 1,000; the Election Law of 1901, 1,000, and the Consolidated Laws of 1909, 1,000 persons — we have to go back to 1892 to find that 500 persons is a sufficient number to make an independent nomination in a district less than the whole State, but greater than a town or the ward of a city — twenty years back. (See Gen. Laws, chap. 6 [Laws of 1892, chap. 680], § 54, as amd. by Laws of 1895, chap. 810; Gen. Laws, chap. 6 [Laws of 1896, chap. 909], § 54, as amd. by Laws of 1899, chap. 363, and Laws of 1901, chap. 654; Consol. Laws. chap. 14 [Laws of 1909, chap. 22], '§ 122.) I think that, so far as the statute of 1911 is concerned, the number required, 1,500, is not an unreasonable number in any judicial district in this State to place in independent nomination a candidate for justice of the Supreme Court. In order to save this nomination and make these peti
I also concur with Presiding Justice Smith that the burden of proof is on whoever asserts that the 900 persons who signed this petition are members of the National Progressive party when they are openly and unanimously repudiated by the regularly constituted authorities of that party, and that in the absence of any proof that such signers are members of that party the action and wishes of the respective committees of that party should prevail. (Matter of Quimby., 116 App. Div. 142; Matter of Folks, 134 id. 376; affd. sub nom. Matter of Bates, 196 N. Y. 540.)
I think that the order appealed from should be reversed and the application of the appellants granted.
Order affirmed, without costs..