People ex rel. Garvey v. Democratic General Committee

82 A.D. 173

Opinions

Ingraham, J.:

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 rights, powers and privileges thereto appertaining, and requiring the respondents “ to recognize the person duly chosen by your petitioner and his fellow members from the Ninth Assembly District as a member of the Executive Committee of said,General Committee ;” and also directing the dissolution of a committee on credentials to which were referred certain protests against the election of the relator and his associates. The petition upon which this application was founded alleges that at a primary election held in the city of' New York on the 16th day of September, 1902, the relator wás elected a member of the general committee from the ninth assembly district of the county of New York; that on the 30th day of December, 1902, the Democratic general committee of New York county, elected on the 16th day of September, 1902, held its first meeting for the purpose of organization, that day being fixed by the rules and regulations of the committee for the meeting and organization of the general committee; that the roll of the said general committee for the year 1903 was called at said meeting and the relator’s name, with others, was'called as upon the roll; that the respondent Oakley was elected chairman of the. meeting, but that he refused to allow the petitioner to vote upon a resolution to appoint a committee on credentials; that thereafter a motion was made and carried that there should be a roll call of each assembly district represented in the said meeting, and that upon such roll call a representative of each assembly district should name the officers" of the delegation from each assembly district committee for the year 1903, and in particular should name the person chosen by "such assembly district committee to be its representative upon the executive committee of the said general committee ; that the said executive committee in accordance with the rules and regulations and customs of the said general committee is made up of one member from each assembly district, which member is chosen by the members of each assembly district committee respectively ; but that said Oakley omitted, neglected and refused to have the secretary call the name of the ninth assembly district on said roll call for the purpose of designating the officers from that assembly district," including the member of the executive committee; that prior to the meeting the members of the said general committee from the ninth assembly district had chosen one of their number to ' be their representative 1 upon the ■ executive committee and had duly appointed and authorized the relator to state the name of the person chosen by the. assembly district committee- to act as its representative on the said executive committee, but .that said Oakley had refused to permit the relator to state ■ the name of the said menaber of the' executive committeee; that, the respondents and each of them have refused to recognize the petitioner as one of the members from the ninth assembly district; that -a meeting of the éxecutive committee had been called by the respondents or one or more of them to be held on January 5, 1903, and that the respond-' erits refused to permit the person so chosen to exercise any functions as a member, of the said executive committee until the report of-the.committee on credentials.' ' ;

.- 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 upon it, to appoint the inspectors of election, or to choose the place for the holding of the primaries, and alldge that the chairman of the general committee is by law the only person authorized to name the inspectors of election and the place for the said primaries; deny that the respondents refused to permit the unnamed person alleged to have been chosen as a member of the executive committee from the ninth assembly district to exercise any function as a member of the sáid executive committee until the report of the committee on credentials; and allege that the executive committee has not performed any functions by reason of the fact that the relator obtained in this proceeding an injunction restraining the executive committee from acting. It was further alleged in answer to the application that at the meeting of the general committee on the evening of December 30, 1902, a resolution was unanimously adopted which provided that “ the districts 'be called in their order, and that one person from each uncontested district and the annexed district, with the exception of the 34th District, in which district there shall be one person from that portion of the district lying south of the Harlem River, and one person from that portion of the district lying north of the Harlem River, named to constitute the Executive Committee for the year 1903; ” that this executive committee is made up each year as directed by the general committee at the time of its organization, and that there are.no. duties performed by the executive committee, and no rights have been conferred Upon and intrusted to the executive committee; that the said executive committee has no power to do anything binding upon the said general committee of the county of Hew York; no authority to adopt any resolution on behalf of the said general committee, and the only function that has ever been exercised by the executive committee of the general committee of the county of Hew York has been to meet at stated intervals to discuss such matters as may have been brought before the committee by one of its members in order that matters of public moment, or otherwise, might be suggested to the general committee at its next meeting for action ; that the executive committee, in other words, has no greater power, authority or privilege than would be exercised by any other member of the general committee who would get together to discuss some subjects which might be properly brought before the general committee for favor able action, and this- is the express limit of the authority, privilege and power of the executive committee; and it is 'expressly denied that the respondents have refused to permit the relator to hand in the name of the individual alleged to have been selected to represent the ninth assembly district upon the executive committee.-

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 .the day fixed by the rules, regulations, constitution or by-laws of the party, the members of each general county committee or city committee shall meet and organize. They may proceed to make and adopt rules and regulations, but, unless so adopted, the rules or regulations adopted by the last preceding county or city committee of said party in said county or city shall remain in full force and effect until repealed or amended in accordance with the provisions of this act. * * * 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 executive committee, or the officers thereof, given to any party in such city or county by section twelve of the Election Law.

“ 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 demand or has been refused the right to which he was entitled. The provision of section 11 of the Primary-Election-Law of 1899 giving to the Supreme Court or any justice thereof within the judicial district summary jurisdiction upon the complaint- of any citizen to: review the action or neglect of the "officers or members of a political committee does not justify the court in granting a mandamus upon the application of a citizen to recognize an unnamed person as a member of an executive committee, when such unnamed person has never applied for recognition or demanded and been refused the right to act as a member'of the committee. But in addition to this I can find no provision which compels this general committee to have an executive committee at all, or that an executive committee of the general committee should be appointed in any particular way. ' Assuming that the rules of the general committee for 1902 provided for an executive committee, when the committee met for organization on December 30, 190'2, a resolution was proposed and unanimously adopted which provided for- an executive- committee', and prescribed how it should be appointed. There is nothing in the law, as I view it, to prevent the committee taking this action. The organization of such a committee is not one of the objects which are, to be regulated by the rules and regulations therein authorized. The statute (§ 9, subd. 1, as amd. by Laws of 1901, chap. 167) expressly gives to the members of the county committee when they meet to organize, power to make and adopt rules and regulations, and it is only when they fail to adopt rules and regulations that the rules and regulations adopted by the last preceding county committee" are to remain in full force and effect. The subsequent provision of section 9 as to the amendment of the rules apply to subsequent amendments. Under.the rule as adopted at this meeting of the general committee the ninth assembly district was not authorized to select a member of the executive committee. The provision of the statute '(§ 9, stibd. 2) that requires that the modified rules should be filed with the custodian of primary records does not avoid an amendment in case that-provision is not complied with, and the fact that a certified copy of such amended rule was not so filed before this application was made does not affect the position of entitle this relator to á mandamus. I, therefore, think that neither upon the facts nor the law has the relator, shown himself entitled to a mandamus. Every fact which bears upon a refusal by the respondents to recognize the relator or his associates as a member of the committee is denied, and the person that the relator seeks to have recognized as a member of the executive committee is not shown to have been refused the right to act as a member of the committee, nor that he has the right to be recognized as a member of the committee.

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.