People ex rel. Donegan v. Dooling

125 N.Y.S. 783 | N.Y. App. Div. | 1910

Per Curiam :

Mr. Shake was-nominated by the Independence League party as a candidate for Senator in the twenty-third Senatorial district which embraces the counties of Richmond, and Rockland. Certificates of such nomination were filed in the office of the board of elections of the city- of Hew York and in the office of the county clerk of Rock-land county. Tho board of elections of the city of Hew York refused to direct the printing of his name on the official ballot to be used at the coming election in Richmond county, which is Within the city of Hew York. On the' application of the relator, an order has been entered at Special Term directing the issuance óf a peremptory writ of mandamus directing the board of elections to print Shake’s name on the official ballot. Prom this order this appeal has been taken. The provisions of the statutes regulating the filing of certificates of nomination in cases like this are to be found in section 127 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22). That section declares the general rule as follows: “ Certificates of nomination-of candidates for office to be filled by the voters' of the entire State, or of any division or district greater than a county, shall be filed with the Secretary of State.” It then provides several exceptions to this general rule, and among said exceptions is one as follows: “ And except that certificates of nomination of candidates for offices to be filled only by the voters or a portion of the voters of the city of Hew York'shall be filed with the board of elections of the city of Hew York.” Then follows this provision : “Certificates of nomination of candidates for offices to be filled only by the votes of voters, part of whom are of Hew York city and part of whom are of a county not wholly within the city of Hew York, shall be filed with the clerk of such county and in the office of the board of elections of said city.” Rockland county is not only “ not wholly within the city of Hew York,” but also not partly. It is situated many miles away from the boundaries of the city of Hew York. Ordinarily the words “not wholly within” refer to a.situation where apart is within. “Hot wholly” is sjmonymous with “ partly.” The present act is but a re-enactment of a pi-evions act (Gen. Laws, chap. 6 [Laws of 1896, chap. 909], as amd.). A re-enactment of a previous statute is both by the settled law of adjudged cases as well as by the provisions of the General Construction Law (Consol. Laws, chap. 22 [Laws of 1909, chap. 27], § 95) deemed not a new law but the continuation of the former law. - In determining its meaning it must be found out what was intended by the prior enactment. As the Election Law was enacted originally it did not contain the provision here in question. It was introduced first by an amendment to section 58 of the act of 1896 made by chapter 379 of the Laws of 1897. This amendment • was designed to meet a situation created by chapter 378 of the Laws of 1897, the “ Greater'Yew York Charter.” This last-mentioned act extended the boundaries of the city of Yew York so that said city embraced three entire counties and a large part of a fourth, viz., Queens county. Therefore, by the amendment of the Eléction ■ Law in 1897 provision was made to meet the situation, where there would be a county largely biit not “ wdtolly ” within, the city of Yew York. Subsequently, by chapter 588 of the Laws' of 1898, that portion of Queens county which lay outside the boundaries of the city of Yew York was erected into the new county of Yassail. Then and .thereafter there was no county partly in the city of Yew York and partly outside, and the provision made by the amendment of 1897 became inoperative. (See,' also, Laws of 1905, chap." 643, amdg. said § 58.) Yo new force was given to this provision by the re-enactment in the Consolidated Laws- for the obvious reason that the situation to which it was intended originally to apply no longer exists. Therefore, neither verbally nor in original intent does the statute in question authorize the-filing of this certificate in any office but that of the Secretary of State. If the court had a dispensing poiver, it might or might not exercise it in favor of the relator. But it has no dispensing power. The candidates for the same office of both the Republican and Democratic parties seem not to have been misled, for .no question arises as to the filing of their certificates'.

The order granting the writ of peremptory mandamus is reversed, without costs, and the motion for the writ is denied, without costs.

Jenks, Burr, Thomas and Caer, JJ., concurred.

Order reversed and motion denied, without costs.