49 N.Y.S. 723 | N.Y. App. Div. | 1898
Dissenting Opinion
The sole reason given by the relator for desiring to inspect and transcribe the defendant’s enrollment books
The relator’s application for a peremptory mandamus was founded upon his own affidavit, in which he stated that, after he and his associates had been engaged in the inspection of the defendant’s enrollment books, and in transcribing the names therefrom, for the space of an hour and a half, the defendant’s secretary stated to them that he would not permit any further inspection for any purpose. This was met by a counter affidavit, made by George B. Emerson, the defendant’s secretary, in which he denied that he refused to allow the relator a further inspection of the books, and averred that he only refused to permit him to transcribe or copy the contents thereof. By persisting in his application for a peremptory writ after having been advised of the defendant’s contention, the relator admitted the truth of every statement contained in the opposing affidavit (People v. New York Law School, 68 Hun, 118, 22 N. Y. Supp. 663), and consequently we are confined to such statements in our examination, of the question under consideration. This being the case, the most that can be claimed in support of the relator’s contention is that he was not permitted to retain the custody of the defendant’s enrollment books for the purpose of transcribing the same; and it is to be observed that this claim is not accompanied by any charge of bad faith. These books, which were designed ostensibly to furnish satisfactory proof of the qualification of electors who might desire to vote at the party primaries which were about to be held, were doubtless, in a certain sense, the property of the°party; that is, every person calling himself a Republican had an undoubted right, under the rules of the organization to a reasonable inspection of them at all times; but, nevertheless, the books were placed in the custody of the officers of the organization, and those officers, as such custodians, were thereby invested with some discretionary power as regards the use to which the books should be put, as well as with some responsibility for their safekeeping. Had the relator been denied a reasonable opportunity to inspect the books, that would unquestionably have been such a violation of one of the defendant’s rules as would have justified interference by the courts; or were there any evidence that the defend
The order appealed from should therefore, in my opinion, be affirmed.
Dissenting Opinion
The general committee of the Republican party of Erie county, called the “Republican Organization,” is a voluntary organization, created for party purposes, without judicial functions or powers, and not created by any statute, and there is no express authority given by the statute for the courts to interfere with its proceedings or determinations. The learned counsel for the appellant cites sections 52 and 53 of the Election Code (chapter 909, Laws 1896), providing that political primaries shall be presided over and selected in the manner prescribed by the rules of the political party holding such primary, and that no person shall be qualified to vote at such primary unless he shall possess such other qualifications as shall be authorized by the regulations and usages of the political party holding the same. Making a list or enrollment of the members of a political party for the purpose of preparing for its primaries, and the mode of doing so, is neither prescribed nor condemned by statute, and I entertain great doubt whether the courts can supervise the action of these voluntary political committees in regard to the enrollment of its voters; but this point is not raised in the briefs presented upon this appeal, and I will consider the question as though the courts had the power claimed in the premises.
The respondent had adopted certain rules for the enrollment of the Republican voters of the county of Erie. The rules are broad and liberal, and full opportunity is given for the enrollment of every voter in the party. On or before the 1st day of June in each year an enroll man is selected by the committee in each district for making an enrollment of the Republican voters therein. The names of these enroll men are published in the. Republican daily papers in the city of Buffalo, with a notice of the street and number at which an enrollment will be made of the Republican voters of the district, and the rules are published for the enrollment for primary meetings, and require that “each enroll man in each district
“The primary meetings of the Republican party will be called and held within the county of Erie not later than October 8th next for the purpose of nominating candidates to be voted for at the next ensuing election, and the said enrollment books are very much in use by the said committee and the Republican voters, and frequent references have to be made to them, and they are almost constantly in use at this time, and there are one hundred and fifty-five of said enrollment books, and in the neighborhood of thirty-four thousand names thereon, and that to permit the said relator and others at this time to have the custody thereof for the purpose of transcribing the same would lead to great confusion and embarrassment, and would greatly delay and hinder the work of the said committee and of this deponent in the proper discharge of the duties devolving upon them under the rules of the said Republican party.”
The affidavit further attacks the good faith of the relator and his friends, and, in effect, denies that they wanted such inspection for the purpose of determining whether all the Eepublican electors entitled to be were enrolled, and whether there was any fraudulent enrollment of names upon the books, but that they desired to procure such names in the interest of candidates for office. It is apparent that if these three gentlemen could use the enrollment books indefinitely, or such a length of time as they might desire to transcribe the names, the same privilege would belong to each and every of the 34,000 Republican voters in Erie county, and, if this privilege was accorded to all who might apply, the committee would be unable to discharge its duty properly; and it must follow that a discretion rests in the committee having charge of these books as to the extent to which they are to be used by any one or more of the individual voters.
The appellant’s counsel lays much stress upon the fact that the secretary refused to permit the transcribing of the names from the book after the hour and a half’s inspection, and the claim is that inspection means the right to copy the names from the book; and cites Cotheal v. Brouwer, 5 N. Y. 562, as sustaining this contention. I do not understand that the word “inspection” covers the right to copy from or take away any portion of the thing inspected. “Inspection” is derived from a Latin word, “inspicere,”—to took into. 1 Bouv. Dict. 725. Webster defines “inspect” to mean “to look on; to view or oversee for the purpose of examination; to look into; to view and examine for the purpose of ascertaining the quality or condition of a thing; to view and examine for the purpose of discovering and correcting errors, as to inspect the press or proof sheets of a book.” The same definitions are given in the Imperial Dictionary. The Code of Civil Procedure and our rules of practice recognize the distinction between inspection and taking oí a copy.
Section 803 of the Code provides for an inspection and copy or permission to take a copy. Rule 14 of the general rules of practice provides that application may be made in the manner provided by law to compel the production and discovery or inspection with copy of books, etc. The case of Cotheal v. Brouwer, supra, does not sustain the appellant’s contention. In that case the plaintiff was a stockholder in a private corporation. The statute provided that the
I think the court at special term, in its discretion, upon the record . here presented, made a proper disposition of the motion before it, and the order appealed from should be affirmed, with $10 costs and disbursements.
Lead Opinion
This court held in Re Cuddeback, 3 App. Div. 103, 39 N. Y. Supp. 388, viz.:
“An appeal will not always be dismissed because the question is no longer a practical one. Notwithstanding the tact that an election has been held, and a decision of the question involved cannot affect the result of that election, yet, where the point at issue is one of public interest, affecting the rights of all the electors of the state, the courts will determine it.”
Following the doctrine there laid down, it seems that we ought not, in this case, to dismiss the appeal, because the question here involved is as much a matter of public interest as the question involved in the case from which the quotation has been made. The enrollment was made for the benefit of the Republican party. The relator was a member of that party, and sought the information which the enrollment would afford him. While he was consulting the books, and gathering from them the information which he, as a member of the Republican party, was entitled to, he was interrupted, and prevented from the completion of his efforts. He, in effect, was denied the full privileges of “an inspection.” Cotheal v. Brouwer, 5 N. Y. 562. The denial was not put upon the ground that he was taking unnecessary time, or interfering with the rights of any other member of the party to examine the books, but upon the assertion that he had no right, while inspecting to make a copy of the list of names he found on the enrollment. Such denial seems to have interfered with the rights and privileges of a member of the party in whose interest the enrollment was made. Mutter v. Railway Co., 59 Law T. (N. S.) 117, 38 Ch. Div. 92. In that case Lord Justice Lindley, in delivering judgment, said that an examination of the authorities had led him to the conclusion that, speaking generally, a right to take copies is always treated as incidental to a right to inspect. “When the right to inspect and take a copy is not expressly conferred, the extent of such right depends on the interest which the applicant has in what he wants to copy, and on what is reasonably necessary for the protection of such interest.” See, also, Nelson v. Agency Co., 75 Law T. (N. S.) 482, cited in 31 Am. Law Rev. 916, 917. The special term might, therefore, have properly awarded a mandamus requiring the defendant to allow the relator a further examination and inspection of the enrollment. These views would seem to lead to the conclusion that the special term improperly denied the writ, and that its order should be reversed.
Order reversed, with costs.
FOLLETT and GREEN, JJ., concur.
