106 N.Y.S. 430 | N.Y. App. Div. | 1907
Lead Opinion
. The relator, Joseph F. Darling, was nominated for justice of the Municipal Court by a party convention. The certificate of his nomination was executed in the -form and manner prescribed by statute, but for some reason, probably the neglect of .the person charged with the duty, was not filed with the board of elections within the time fixed by law for the filing of certificates of nomination by political parties. This time expired on October 11, 1907. On October eighteenth an application .was .made to the board of elections that the certificate of nomination of said Darling should then be filed nunc pro tunc as of October eleventh. There had also been filed with the board of elections as prescribed by section 10 of the Primary Election Law (Laws of 1899, chap. 473) the records or minutes of the convention at which Darling was nominated.
The two proceedings in which these two appeals are taken involve two question’s, namely, first, whether or not a certificate of nomination by a party cónvention can be filed with the hoard of elections after the time prescribed by law for filing such certificate because it appears from undisputed testimony that the omission to file such certificate within the statutory time was due to error or oversight and' second, whether or not the minutes or records of the nominating convention filed as required by section 10 of the Primary Election Law, which showed the fact that Darling had been nominated and which contained many of the essential elements of a certificate of nomination as prescribed by section 56. of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 654) should have been accepted and regarded as a certificate of nomination under. the last-named section.
Section 59 of the Election Law provides the time for filing certifi
It is sought to distinguish the present case from the one just cited because here it appears as it did not appear in that, case, that the nomination had been regularly made by the convention and a proper certificate prepared ..and executed for filing, and that, the' failure'to file it was due'to the conceded inadvertence on the part of the person charged with that duty. We, are unable to see that this circumstance affects the: general rule, for if the limitation of time within which the certificate is to be'filed is to be.considered as mandatory, there is no power in the board of elections or in the court to relieve a person from the consequences of a failure to act within the necessaiy time. The provision as to the' time within which certificates of nomination must be filed is but. a. part of a general scheme embraced in tile Election Law for nominations of party candidates' and of candidates by independent nominators and for the consideran tion and determination Of objections which may arise thereto. Thus the Election Law permits the filing of objections to a certificate of nomination Within three days after it is filed, ahd also alloWs the 'filing of independent nominations within five days after the. filing of party nominations. If it should'be held that, the board of elections had- the power to permit the filing, of a certificate of nomination seven .or eight: days after the time fixed by the statute, the Whole scheme providing for filing nominations and making objections thereto would be disorganized.
It is an unfortunate circumstance that the .certificate of the relator’s nomination was not filed, and we should be glad to relieve him from the consequences of this erl-of "if it were possible to' do so. But in order to hold that'the'board of-elections should have received the certificate on October eighteenth, upon undisputed evidence of
So far as concerns the filing of the minutes or records of the convention, while that furnishes evidence that the convention nominated Mr. Darling, it cannot be accepted as the equivalent of, or in substitution for, a certificate of nomination. The filing of the minutes of the convention is provided for by section 10 of the Primary Election Law, and need not contain some of the essential elements required to be included in a certificate of nomination, which must not only be signed by the presiding officer and secretary of the convention or primary, but must have added to their signature their respective places of residence, and must be verified by the oath .of such officers, and must also contain the title of the office for which the person is nominated, the name and residence of such person, and, if in á city, the street number of the residence of such candidate and his place of business if any. It is quite clear that the minutes of the convention were not intended by the statute to be taken as a certificate of nomination, and were not filed by the convention as a certificate of nomination or intended by the officers of the convention to operate as such a certificate. It follows, therefore, that.no certificate of nomination of the relator was filed with the board of elections within the time- prescribed by law for the filing of party nominations. There being no authority in the statute for the acceptance of such a certificate after the time specified, the board of elections was right in refusing to receive the certificate on the eighteenth of October; and as the minutes of the convention were in no sense a certificate of nomination, there was nothing which the committee appointed under section 56 of the Election Law could act upon by supplying the defect under section 66, for that contemplates the supplying of defects only in the certificate of nomination and not
The orders appealed from must be affirmed.
Pattebsok, P. J., and Lígbaham, J.-, • concurredGlabkb, J., dissented. " , • ' "
See Election Law, § 58, as amd. by Laws of 1905, chap. 643.—- [Rep.
Dissenting Opinion
(dissenting):
A party convention duly-nominated candidates for two» judicial offices. The minutes of the convention, showing the action thereof, were filed with the custodian of primary election records in- due time. A duly executed certificate of nomination of-each candidate was carried -by an agent of the'convention to the office of the said custodian within the time limited. By mistake, the certificate naming one candidate was not filed, 'although the certificate of the candidate for the other judicial office, was filed. Apparently the messenger assumed that one certificate included both candidates. This mistake having been discovered .after the timé limited by the statute in which the certificates were required to‘be-filed had expired, this court now holds that it is without - power • to fúrnish relief. ...
■ The effect of this ruling is, that-if the certificate of nomination of a duly nominated -candidate of a party, duly exécuted and sent for filing, is not actually filed twenty-five days before election, by mistake, fraud, violence, flood,'fire or pestilence, there is no remedy. To such a doctrine I do not subscribe. As said by the Court of Appeals, “ In accordance with repeated decisions of this court and of the Appellate Division, * . * *■ - the Election Law should be construed liberally to give effect to the will of tlie people.” (Matter of Independent Nominations, 186 N. Y. 266.)
I, therefore, dissent.
Orders affirmed. Settle order on notice.
