82 A.D. 173 | N.Y. App. Div. | 1903
Lead Opinion
The relator applies for a peremptory writ of mandamus requiring the respondent, the Democratic General Committee of New York County and the respondent Cram, as president or chairman of the said Democratic general committee, and .John T. Oakley, "as temporary chairman at a meeting of the general committee, to recognize the relator as a- member of the Democratic committee, with all
.- In answer to this application, the respondents deny that this -relator had been denied" the right, to act as .a member of the general committee .or at' the meeting of the general committee called to organize on the 30th day of December, 1902, but they allege that the relator had been- recognized as. a member of. the general committee, had acted as such and had been accorded all the privileges appertaining to' that office, and further denied that they had ever threatened to object' or interfere with the rights of the relator in any way as a member of the general committee.; that there was a resolution that there should be a roll call of' each assembly district represented.in the said meeting to name the officers of the delegation from each assembly district for the year 1903, and in .particular to name the person chosen by the said assembly district meeting to be its representative upon the said executive committee of the general committee; deny that - the presiding officer" at the meeting omitted" and neglected, "or refused, to .have the secretary call the name of the ninth assembly district- on said roll call; denies that the said presiding officer omitted or refused to call or cause or permit to be called the name of the ninth assembly district,, or to permit the relator to state the nanie of the said member of the executive’ committee ; deny that the said executive committee to which it is claimed soine unknown person had been elected.for the ninth assembly ■district has the right to appoint the inspectors of election of, the said ninth assembly district and allege that the executive.committee lias neither authority, right nor privilege^ either, inherently or conferred
After hearing the parties to this proceeding the court granted a peremptory writ of mandamus, as prayed for in the petition, directing the appellants to forthwith recognize the relator and each of his associates as members of the general committee, with all the rights, powers and privileges thereto appertaining, and further directing them and each of them to recognize as a member of the executive committee" of the general committee the person chosen by the relator and his associates from the ninth assembly district as a member of the said executive committee of the said general committee.
It seems to me that in the face of these express denials a peremptory writ of mandamus should not have been granted; that the denials of the respondents raised an issue of fact that had to be disposed of before a mandamus could be granted, and that the only way in which such an issue of fact could be disposed of was by a trial under an alternative writ. There is, however, a fundamental objection that -is fatal to this proceeding. The relator seeks to enforce an individual right as a member of the general committee ' of the Democratic party of tlie county of New York. That right is to participate in the proceedings of that committee and to be recognized as a member thereof. He does not commence this proceeding on behalf of others or to enforce the rights of others to an office to which they were elected: The only right, therefore, that he could enforce in this proceeding was the right to be recognized" as ' a member of the general committee, and that right was not denied him according to his own statement.'
This application is made under the Primary Election Law (Laws-of 1898, c'hap. 179, as amd. by Laws of 1899, chap. 473). The provisions relating to general committees are contained in section 9 of the act of 1899 (as amd. by Laws of 1901, chap. 167).' . It is there provided that “The times when committees elected at-primary elections shall take office shall be determined by the rules and regulations of the respective parties, except that such time shall not be later than the first day of January succeeding their election. On
“ Subdivision 2. The rules and regulations of parties and of the conventions and committees thereof * * “ shall not be amended except upon reasonable notice. Every political committee shall, within three days after its organization, file with the proper custodian of primary records a. certificate specifying the names and addresses of its chairman and secretary, and shall within the same period of time after its adoption file with said custodian a transcript of every rule and regulation of said party in said county and of every amendment thereof duly certified in like manner.” Section 11 of the act of 1899 provides that “ any action or neglect of the officers or members of a political convention or committee * * * shall be reviewable by the appropriate remedy of mandamus or certiorari, as the case may require.”
There is nothing in this act that justifies the court in requiring the executive committee of a county or city committee on the application of a member of the committee to recognize an unnamed person as a member of an executive committee upon an unsupported allegation in the petition that the persons entitled to choose a member of the executive committee had agreed to recommend an unnamed person as a member of such executive committee. If the individual so selected presents himself to the executive committee with proper credentials and claims to be allowed to act as such a member and such claim is refused, it will then be time for him to apply for relief; but it is not alleged that any one has made such
I think, therefore, that the order appealed from should be reversed, with costs and disbursements, and the proceeding dismissed, with costs.
Van Brunt, P. J., O’Brien, McLaughlin and Laughlin, JJ., concurred.
Concurrence Opinion
The purpose and intent of the Primary Election Law is to give representation to eachassembly district in a general county committee of each political party. Upon the organization of such committee it is competent for its members to determine just how the work of administration of the affairs of the body shall be divided, and' through what committees and in what manner and form the party purposes shall be carried out. 'To that end it is competent for such general committee to make and adopt resolutions and rules, and upon failure to do so, then the Primary Election Law of 1899 (§ 9, snbd. 1, as amd. by Laws of 1901, chap. 167) provides that the rules and regulations of the preceding county committee shall be controlling. There is no law or statute to which our attention has been called which gives to any assembly district, by the mere fact of election of members to the general body, the right to be represented upon any particular committee of that body; but, on the contrary, this subject of representation on particular committees is controlled-and determined by the rules and regulations of the general county committee. These rules and regulations, as stated, may be adopted by the members of the general committee, but, if not so adopted, are superimposed upon them by virtue of the law which, in such a case, makes the rules and regulations of the preceding body controlling. The rights of the relator, -therefore, are to be determined by considering what rules existed and applied to the general committee of which he was an elected member, and what as to him and his associates
It is conceded that- the relator was duly elected a member of the Democratic general committee, and we may assume that, in accordance with the rights conferred upon the members elected. to this general committee from the ninth assembly district (as provided in the rules and regulations that existed and applied to the preceding body), he and his associates from that district were prepared to suggest one (whose-name is not given) as their choice for membership-on the executive committee, which was one- of the committees of-the body. What may have been the scope and duties of such executive committee it is unnecessary for'us to determine, it being sufficient to say that whatever rights the member's of the general com anittee elected from other districts had, the same rights were shared Ibj the members elected from the ninth assembly district with respect to the selection of one of their number for membership upon the executive committee or upon any of the committees which, under the rules and regulations, were to be made up by each district selecting a. member thereof.
We think, too, that the undisputed inference is that a notice of protest was served as against the ninth' assembly district, and while we do. not regard such protest as in any way impairing the rights-of the relator as a'member of the general committee, still the resolution which was adopted in effect amended the rules, and regulations as they existed in 1902. The rules existing, in 1902 provided in article 5 for an “Executive Committee to consist of one. member from each Assembly District; ” and the resolution passed by the new body provided “ that the districts be called in their order, and that one person from each v/dcontestecl district' * * * (be) named to constitute the Executive Committee for the year 1903.”
An explanation of this change or amendment is given in the affidavit' of Mr. Grady, wherein it is stated that upon meeting for organization on the 30th day of December, 1902, it' was found that the members of the general committee were dissatisfied with the old rule, and accordingly the resolution for calling- all districts against which no protest was tiled was moved and unanimously carried as an amendment to the rules.
We think, however, under the provisions of the Primary Election Law, that upon the first meeting of the general committee for organization it was competent for that body to then adopt a complete code of rules and regulations, and it would follow if that power exists in such committee it was equally competent to adopt, amend or reject the rules which had governed the preceding general committee. We know that with respect to party conventions, although it has been the almost invariable practice among the first steps taken to adopt the rules of the Assembly as the rules for their government, there is nothing to prevent such conventions on organizing from adopting an entirely different set of rules. The adoption of the
The very provision of the Primary Election Law cited says-, as will be seen on reading it, that on the day fixed, the members of the general county committee.shall meet and organize, and continues : “ They may proceed to make and adopt rules and regulations, but . unless so adopted, the rules or regulations adopted by the last preceding county * * * committee of said party * * * shall remain-in full force and effect until repealed or amended in accordance with the provisions of this act.”
If the relator is right in his contention that upon that first meeting of the body for organization it was powerless to make and adopt rules and regulations unless some prior notice of the intended amendment should in some way have been given, thisis equivalent to asserting that the body was powerless upon meeting for the first time for organization to adopt any rules and regulations, because up to that time it could give no notice to any one. It did not exist prior to that time as a body or committee, and it would, therefore, necessarily be forced nolens volens to be controlled by the rules and regulations which during the prior year had been adopted by the preceding county committee. We think it would be an unusual and strained construction to place upon this section of the Primary Election Law (§ 9, subd. 1, as amd. by Laws of 1901, chap. 161) to hold that a conimittee when it first meets for organization, though there is . conferred upon it the express power to make and adopt rules and regulations, is prevented, nevertheless, from performing that very . act because of another provision (§ 9, subd. 2) which requires that amendments shall only be made upon reasonable notice, and that “ reasonable notice ” as here used shall be the. equivalent of notice given at some prior meeting.
Assuming that it was the desire of the entire committee to adopt different 'rules and regulations than those which governed the preceding county committee', upon whom and how and by whose direc
As, under the principle applying to peremptory writs of man-damns, we must take as true the allegations of the respondents, (appellants here) we are obliged to conclude as matter of fact that the resolution in question, which was in effect an amendment of article 5 of the old rules, which, upon the subject of selecting members of the executive committee, had' governed the preceding general committee, was unanimously adopted at the first meeting called for the purpose of organization. Though it does not appear that there was any formal resolution adopting the rules and regulations which prevailed during the year 1902, it would follow by force of subdivision 1 of section 9 of the Primary Election Law (as amd. by Laws of 1901, chap. 16Y) which we have already quoted, that such rules and regulations, except so far as modified or amended at that first meeting, became the controlling rules and regulations of the general committee during the year 1903. The resolution which amended the rules in the respect mentioned with reference to the composition of the executive committee, having been within the right of the body to pass, as it here appears it was passed by unanimous consent, and by a committee or body of which the relator was a member, we fail to see why it was not binding and controlling upon him.
It is insisted that the resolution did not become effective because a certified transcript thereof was not, as directed by subdivision 2
I concur, therefore, with Mr. Justice Ingraham for reversal. '
Ingraham, McLaughlin and Laughlin, JJ., concurred.
Laws of 1899, chap. 473, § 9, subd. 1, as amd. by Laws of 1901, chap. 167.— [Rep.
Concurrence Opinion
I concur. I also think the proceedings should be dismissed because of the unconstitutionality of the law involved.
Order reversed, with costs and disbursements, and proceedings dismissed, with costs.
