200 N.Y. 59 | NY | 1910
Lead Opinion
While I think the decision of the courts below could well be sustained on the ground of long acquiescence by the public and legislature in the interpretation of section 136 of the Election Law, declared by Mr. Justice BISCHOFF in Matter of Gillespie v.McDonough (
It has been suggested that committees can more readily makes fusions and combinations than conventions. If such is the case what power is there to forbid such fusions and combinations as the electors choose to make? It has also been suggested that a committee may be exposed to corrupt influences. I do not see why corruption might not be used to prevent the indorsement of another candidate as well as to indorse him. But assuming the suggestion well founded, it may be a reason for denying the power of nominating to a committee, but the power cannot be vested in them to be exercised in favor of one class of nominees and against another. Could a provision be upheld that the committee should not nominate *63 a man worth more than a million dollars on the theory that he would be more able to corrupt it than a poor man? The fact is plain that the legislative provision is solely intended to prevent political combinations and fusions, and this is the very thing that I insist there is no right to prevent or hamper as long as our theory of government prevails, that the source of all power is the people, as represented by the electors.
A similar question arose in Michigan. A primary election law in that state provided that before the name of any candidate should be placed upon the ballot at the primary election such candidate should make oath that he was a candidate for the office. This provision was held unconstitutional. The court said: "The authority of the legislature to enact laws for the purpose of securing purity in elections does not include the right to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. * * * We cannot escape the conclusion that the provision in question does most seriously impede the electors in the choice of candidates for office, and that it is in conflict with the provisions of section 1 of article 18 of the Constitution. * * * This provision * * * precludes the voters from choosing as a candidate one who declines to himself seek the office." (Dapper v. Smith,
It is no answer to this position to say that the law permits conventions to nominate the candidates of other parties, and that, therefore, neither the right of the elector nor that of the candidate is impaired. Legislation to be valid must not only not deprive the elector of his right to vote for whom he will, but for what candidate he will, and it must not discriminate in favor of one set of candidates against another set. Would a statute which authorized a committee to nominate as its own candidate a candidate of either of the two great political parties, but not a candidate of one of the smaller parties, or authorized it to name a black-haired man, but not a red-haired man, be valid? Yet, if the argument by which it is sought to sustain the legislation before us is sound, it would equally support such legislation. It could be said that no *64 right was impaired because conventions were at liberty to nominate red-haired men, though committees were not.
The orders of the Appellate Division and Special Term should be affirmed, with costs.
Concurrence Opinion
I think that the determination below was right and that the order appealed from should be affirmed. The courts have followed, as I understand, a decision made in 1902 by Mr. Justice BISCHOFF in Matter of Gillespie v. McDonough, (
I think the affirmance may well be placed upon the first ground discussed; but if necessary to the affirmance, I shall concur with the chief judge's opinion.
Concurrence Opinion
I concur for affirmance on the first ground stated by Judge GRAY. The provisions of the Election Law governing the question now before us are not entirely free from ambiguity and uncertainty. I think, however, that they may fairly be construed as permitting what was done in this case, and in view of the fact that the legislature for several years has allowed such interpretation by the courts to prevail and be followed by political parties when, independent of the question of constitutionality raised by Chief Judge CULLEN, it could have avoided or prevented the same by a slight amendment of the statute makes me the more ready to adopt this view.
Dissenting Opinion
On the 6th day of October, 1910, at a convention of delegates of the Independence League party, held in and for the second judicial district, a resolution was adopted appointing a committee to make original nominations for three justices of the Supreme Court on the Independence League ticket for that district, and subsequently on the 7th day of October, at a meeting of that committee, it placed in nomination for the offices aforesaid Garret J. Garretson, Samuel T. Maddox and Harrington Putnam, who previously, and on the 1st day of October, 1910, had been placed in nomination by the Republican party at its judicial convention held in and for that judicial district. Upon filing the *68 certificate of such nomination with the secretary of state by the committee of the Independence League, the appellant entered a protest with the secretary of state, in which he claimed that such nomination made by the committee was void and in violation of the provisions of section 136 of the Election Law. The protest having been overruled by the secretary of state, these proceedings were instituted by the appellant, who was the nominee for justice of the Supreme Court in that district by the Democratic party.
The question thus presented for determination is as to whether a candidate who has been nominated by a political party for an office can be nominated by a duly authorized committee of a convention of another political party under the Election Law of our state.
Section 120 of the Election Law provides that "Party nominations of candidates for public office can only be made by a convention, or by a duly authorized committee of such convention." It thus will be observed that the convention of a party is its supreme power, and is invested with primary and original power to make nominations of candidates for an office. No committee, primarily or originally, possesses such power. It is only after the convention has duly authorized a committee to make nominations that it is vested with power to do so. Its power is, therefore, delegated and secondary to that of the convention. Section 135 contains provisions with reference to filling vacancies occurring in party nominations by the declination, death or disqualification of a person nominated, and section 136 contains provisions with reference to the making of a certificate by the committee, the signing and filing of it, and then concludes as follows: "When no nomination shall have been originally made by a political party or by an independent body for an office, or when a vacancy shall exist, it shall not be lawful for any committee of such party or independent body authorized to make nominations or to fill vacancies, to nominate or substitute the name of a candidate of another party or independent body for such office; it being the intention of this chapter that when a candidate *69 of one party is nominated and placed on the ticket of another party or independent body, such nomination must be made at the time and in the manner provided for making original nominations by such party or independent body."
Some confusion appears to exist with reference to the meaning of the word "originally," as appears in the first clause of the statute: "When no nomination shall have been originally made by a political party for an office," the contention being that "originally" refers to a nomination made either at a convention or by a committee appointed by the convention. But it appears to me that this question is answered by the statute itself, for in construing it we are bound to give force to all of its provisions, provided they can be harmonized with each other. True, the nomination by a committee is original in the sense that it is first made. But it must be remembered that the statute has invested the convention with the power to make nominations and that its power is primary and original. When the convention is called for the purpose of making nominations, its power so to do is original, and when it delegates that power to a committee, the committee's action is secondary and subject to the power of the convention. An examination of the provisions of sections 120, 121 and 135, and those under review of section 136, make it clear that the convention is empowered to appoint two committees, and only two, one to make nominations and the other to fill vacancies. If the convention itself nominates candidates for all the positions to be filled, then no committee to make nominations could be properly appointed, for there would be nothing for the committee to do; and the only committee that would be necessary in such a case would be a committee to fill vacancies. If the word "originally," therefore, refers to nominations made in the first instance by the convention, then all of the provisions which follow become of force and effect. If, however, the word "originally" means the nomination made by a committee, then no force or effect can be given to a portion of the statute which follows: "When no nomination shall have been originally made by a political party * * * *70 for an office, or when a vacancy shall exist." Here we have distinct reference to the two committees which the convention has been authorized to appoint in the preceding sections of the statute, to wit, a committee to make nominations, and a committee to fill vacancies. The statute then proceeds: "It shall not be lawful for any committee of such party * * * to make nominations or to fill vacancies" (here again we have the two functions distinctly referred to, to make nominations and to fill vacancies), "to nominate or substitute the name of a candidate of another party or independent body for such office." And then the statute concludes: "It being the intention of this chapter that when a candidate of one party is nominated and placed on the ticket of another party or independent body, such nomination must be made at the time and in the manner provided for making original nominations by such party or independent body." The time and manner provided for making original nominations, under the statute, is the convention called for that purpose. If the committee to make nominations is to be exempted from the restrictions of the statute, then all of the provisions specifically relating to its functions become meaningless and senseless. If, however, the legislature referred to a nomination by the convention, then every provision becomes clear and operative.
The committee appointed to make nominations, as well as the committee appointed to fill vacancies possess separate, independent functions; but those functions may be delegated to one committee who is empowered to make nominations as well as to fill vacancies. In such case the limitations of the statute extend to each of the functions of the committee.
The provisions of the statute under review were inserted in the Election Law in 1896, chapter 909, section 66. Its purpose was to correct an evil that had made its appearance in the nomination of candidates for office. A number of parties had come into existence in which nominations for office were made and placed upon the official ballot. Some of these parties, meeting in convention, only made nominations for one *71 or two positions, and then adjourned after appointing a committee to make nominations and to fill vacancies. In some instances rumors were circulated that positions upon such party ballot had been improperly disposed of to candidates upon other party ballots, so that it was not uncommon to find the name of a candidate on three or four columns of the official ballot. This evil the legislature attempted to correct. If the statute is now to be construed as having no reference to committees appointed to make nominations, then the evil sought to be remedied by the legislature chiefly fails. It is true that it is conceded that it applies to the committee authorized to fill vacancies, but it was not in the committee that filled vacancies that the evil practice referred to existed. It consequently would follow that the statute is practically meaningless and accomplished no beneficial results.
It is now contended that "originally" means a nomination not made before the time required by the statute for the filing of a certificate of nominations thirty days before election, and that the limitation upon the powers of the committee thereafter applies, whether it be a committee to make nominations or of filling vacancies. I had supposed that the power of a party to make nominations ended with the limitation of time in which the certificate is required to be filed, and that thereafter its power was limited to the filling of vacancies. In order to construe the statute in accordance with the suggestion, it would practically have to be rewritten and reference made to the thirty-day clause. It would require something more than the transposing of words and sentences or the substituting of words in order to make the meaning of the legislature clear.
It has been further suggested that the legislature had no power to limit a party in making nominations. Assume this to be so. The legislature in this case has not limited the power of the convention to make nominations of candidates of another party. The convention may do so, or it may appoint a committee to meet a committee of another political party and agree upon candidates who shall be supported by their respective *72 parties. Nor has the legislature limited the power of a convention to dispense with an annual session and delegate its power to a committee to make nominations for the next succeeding year. But in such a case the committee so appointed becomes the sole and original power to make nominations for that year, and consequently the provisions of the statute do not apply to nominations "made at the time and in the manner provided for making original nominations by such party." All that the legislature has attempted to do in this case is to regulate the manner in which nominations shall be made and to specify the extent to which a convention may delegate its powers to a committee. This does not, to my mind, infringe upon any of the constitutional provisions.
The order appealed from should be reversed.
WERNER and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J., and GRAY, J.; CHASE, J., concurs with CULLEN, Ch. J., only; HISCOCK, J., concurs, in memorandum, with GRAY, J., only on the ground first stated in his opinion; HAIGHT, J., reads dissenting opinion.
Orders affirmed, with costs.