People ex rel. McCarren v. Dooling

128 A.D. 1, 112 N.Y.S. 71, 1908 N.Y. App. Div. LEXIS 366

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 28, 1908
• Status: Published

Opinions

Rich, J.:

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 such party, which was organized as regular by the last. preceding State Convention of such party.” It appears that the body of which Mr. Williams is chairman had also filed with the board of elections a list of names of Democrats who were qualified to fill the various positions. The relator moved at Special Term for a peremptory writ of mandamus directing the commissioners of elections, constituting the board of elections, to accept and appoint from. the list of persons, “ members of the Democratic party,” authenticated and filed by him, and this appeal is from the order of the Special Term denying' his application.

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 ■ place responsibility for the party management and of party control of a locality in the hands of the duly enrolled electors thereof. As ■ was said by Chief Judge Parker speaking of this statute for the • Court of Appeals in People ex rel. Coffey v. Democratic Committee (164 N. Y. 341): “ The dominant idea pervading the entire statute is the absolute assurance to the citizen that his wish as to the conduct of the* affairs of his party may be expressed through his ballot and thus given effect, whether it be in accord with the wishes of the leaders of his party or not, and that thus shall be put in effective operation, in the primaries, the underlying principle of democracy, which makes the will óf an unfettered majority controlling. In other words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.” There can be no doubt as to the power of the Legislature to provide a system for the regulation of the party machinery, and that is precisely what has been done by the statute under consideration. True, there is an apparent inconsistency between section 12 of the Election Law and subdivision 1 of section 9. of the Primary Election Law, and the two statutes must be read together, and such construction placed upon them as shall give effect to the evident intention of the Legislature. (Matter of Deuel, 116 App. Div. 612.) With this rule in mind there can be but little doubt as to what that-intention was. Section 12 of the Election Law was originally enacted with the proviso quoted in 1896, while the Primary Election Law was enacted in 1898

* and expressly repealed all acts and parts of acts inconsistent with its provisions. This operated, in my opinion (although all of my brethren do not unite in this expression), as an express repeal of the proviso of section 12 of the Election Law, notwithstanding the fact that the proviso was permitted to remain substantially as originally enacted in the subsequent amendments. I find myself, therefore, unable to agree with the learned justice at Special Term that the section was re-enacted with the proviso after the passage of the Primary Election Law. The Legislature could not have so intended. Such a thing would have rendered the Primary Election Law nugatory.

But if section 12 of the Election Law is not repealed or is not made inoperative by the Primary Election Law, but is to be read with it, it must be harmonized with the Primary Election Lawi Now, the Primary Election Law in subdivision 1 of section 9 (as amd. supra) prorides: “ 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.” And the same subdivision prescribes : “ All members- of general committees, and assembly district and ward committees, chosen in or from cities of the first class except as otherwise herein provided, shall be elected at the primary elections, on the annual primary day of each year.” Even if in the eye. of the law there was a faction or a section constituted by that body headed by Hr. Williams which was recognized by the State convention, that faction or section perforce of such recognition alone cannot present a list of election officers to the board' of elections. For that list-in any event must either be authenticated and filed by the chairman of the executive committee of the county committee (Election Law, § 12, as amd. supra), or by the committee (Primary Election Law, § 9, subd. 1, as amd. supra). But the Primary Election Law prescribes how the county committee is to be constituted, namely, by election at the primary election on ■the annual primary day of each year. It is not shown by the body headed by Hi'- Williams that the list is filed by the chairman of any executive committee of a county committee thus constituted or attempted to be thus constituted. It surely cannot be contended that .the .recognition of a “ faction ” as regular by the State convention absolves ipso facto that body from compliance with the Primary Election Law in the constitution of stated committees. If this were so, then this mere recognition of regularity might permit such body to constitute its committee in any manner it chose. Before this body could successfully contend that it had a county committee it must have at least attempted to constitute such a committee in the manner prescribed by law. It could have named committeemen for election at the primary election on the animal primary day, and whatever the result so far as the number of votes returned, there might then have been force in their position that the “faction” recognized as regular by the State convention had chosen a regular. Democratic county committee which might be recognized as such committee despite the fact that a majority of votes cast appeared to elect other persons, or at least they had thus complied with the requirements of the Primary Election Law so far as it lay in their power. This body indeed did present a ticket at the primaries for the State convention and succeeded in having many of its nominees declared members of the State convention, despite the face of the returns. But we fail to find any satisfactory showing in the record that Mr. Delaney, who filed this list with the board of elections, was the chairman of the executive committee of a county general committee or represented a county general committee which was constituted or sought to be constituted in obedience to the positive provisions of the Primary Election Law cited. A “ faction ” stamped as regular has no prerogative above the law, and it must be “ regular ” in its observance of the law, as well as “ regular ” within the recognition of the State convention.

.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, and tli'e mere statement or declaration of the State convention in a resolution that there is a contest or faction does not create the one or the other. - The precise object, of the Primary Election Law was to do away with the arbitrary power of men and apply the time-honored maxim that “ This is a government of laws and not of men.”*

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.