112 N.Y.S. 71 | N.Y. App. Div. | 1908
Lead Opinion
The relator is chairman of the executive committee of the county-committee which was duly elected at the annual primary election in the year 1907 as the Democratic county committee of Kings county. In June, 1908, as such chairman he filed with the board of elections of the city of New York a duly authenticated list of the inspectors poll clerks and ballot clerks for each election district in the county of Kings to- represent the Democratic party in said county on the various boards of elections. This list was rejected by the board of, elections on the ground that a State convention held subsequent to the election of the county committee had passed the following resolution : “ Whereas there are two sections, groups or factions of the Democratic party in Kings county, and for the welfare of the party the stamp or seal of regularity should be placed upon one section, group of faction, to the end that party harmony may prevail, resolved that this State Convention of the Democratic Party organizes and recognizes as the regular Democratic party in Kings County the section, group or faction of the party known as The Kings County Democratic party, of which body George V. S. Williams is chairman of the County General Committee, and- directs the Democratic State Committee and requests all public officials to recognize the said The Kings County Democratic party as the regular Democratic party of the County of Kings.” Section 12 of the Election Law (Laws of 1896, chap. 909), as amended by chapter 379 of the Laws of 1897, chapter 675 of the Laws of 1898, chapter 630 of the Laws of 1899, chapter 95 of the Laws of 1901, and chapter 70 of the Laws of 1904, provides that the board of elections of the city of New York and the mayor of each other city shall, on or before the first day of September of each year, select and appoint election officers for each election district therein, that each political party entitled to representation may not later than the first day of July in each year file with such board or mayor 'an original list of persons, members of such party, duly qualified to serve as election officers. The section, however, contains the proviso “ that if in any city more than one such list be submitted in the name or on behalf of the same political party, only that list can be accepted which is authenticated by the proper officer or officers of the faction or section of
It is contended by the learned counsel for the respondents that the State convention was the arbitrator between the two factions of the party in Kings county; that its action was final and the court is without jurisdiction to entertain the application. We are to deal with these questions. There is another statute that cannot be overlooked (Laws of 1899, chap. 473), the “ Primary Election Law.” It is “controlling” on the methods of enrolling the Voters of a party in cities and in villages having 5,000 inhabitants or more; oh primary elections in such cities and villages, and on party conventions in and for any political subdivision of the State. (See § 1.) It was held in Matter of Sheehan v. McMahon (44 App. Div. 63). that in determining the right to authenticate lists of election officers subdivision 1 of section.9 of the Primary Election Law and section 12 of the Election Law must be read together as one general statutory scheme. Subdivision 1 of section 9 of the Primary Election Law (as amd. by Laws of 1901, chap. 167, and Laws of 1903, chap. 595) provides that “ each party shall have a general committée for each county, except that in the city of New York there may be, in lien of, or in addition to, a general committee for each county wholly therein, a general city committee,” etc., and that “ each county or city committee and the officers thereof shall have all the power and authority and shall perform all the duties, in respect to the nominations of officers to serve at general elections, conferred upon the general committee, the county committee, the city committee, the execu-, tive committee, or the officers thereof, given to any party in such city or county l>y section twelve of the Election Law.” The scheme and purpose of the Primary Election Law was to provide for and regulate the party machinery and to prevent corruption. It was intended to ■
.Regardless of previous discussion, we could, if necessary, put our decision upon another ground alone. The-eounty committee represented by relator was elected at a primary election conducted at great expense to the city, and it is not contended that the committee represented by ,Mr. Williams were ever even voted for or made any contest for election as county committeemen at the primaries of 1907, and no “ sections, groups or factions ” in the meaning of the Election Law were created or existed for the purpose of presenting the matter to the State convention to give it jurisdiction. The party treachery alleged to have been committed in the election of 1906 by the Démoeratic committee of that year all occurred prior to the holding of the primaries of 1907. Those primaries were held in pursuance of law and the result was acquiesced in to the extent of holding the primaries of 1908 under the auspices of the committee chosen in -1907. The State convention heard various contests over the election of State delegates to the convention of 1908, and admitted some of the delegates of the Williams body, but that did not even by implication create a contest or a faction or section growing out of the primaries of 1907,
In reference to the suggestion as to the authority of the court it is only necessary to say that the Legislature-has regulated the conduct of primaries by statute and any party feeling himself aggrieved by its operation may enlist the aid of the court in construing it, and besides this the act itself (Primary Election Law, § 11) expressly vests such authority in the court;
The order -of the Special Term must be reversed and the prayer of the petitioner granted, with ten dollars costs and disbursements.
Woodward, Jenks and Hooker, JJ, concurred ; Gaynor, J., concurred in separate opinion.
See Laws of 1898, chap. 179, as amd. by Laws of 1899, chap. 473.— [Rep.
See Marbury v. Madison (1 Cranch, 163).— [Rep.
Concurrence Opinion
At the last state convention of the Democratic party, held in Tune of this year, contesting delegates -presented- themselves purporting to be accredited from- two organizations-in Kings county, respectively, each calling itself the Democratic party in Kings county. The convention admitted the delegates of one of them, and also passed a resolution that whereas there were two sections, groups or factions of the Democratic party in. Kings county, it “ organizes and recognizes ” that one .as the regular Democratic party in Kings county. Each of these organizations has now by .the chairman of the executive committee of its county committee certified to the Board of Elections of the City of New York a list of names of persons for appointment as inspectors of election by that board, as provided by section 12 of the Election Law. That section also provides that if “ more than one such list be submitted in the name or on behalf of the same political party, only that list can be accepted which is authenticated by the proper officer or officers of the faction or section of such party, which was organized as regular by the last preceding State convention of such party ”,
. While these are my views, they are not shared by a majority of the court, and I yield my judgment to theirs ; the more willingly as I expressed the same views in the case of People v. Gleason (18 Misc. Rep. 511) several years ago, and mistrust that for that reason I may be unduly tenacious of them now.
Order reversed, with ten dollars costs and disbursements, not as matter of discretion but as matter of law, and motion granted, with costs. Leave to appeal to the Court of Appeals granted.