
    Samuel G. French v. Theodore Roosevelt et al., Commissioners of Police of the City of New York.
    (Supreme Court, New York Special Term,
    October, 1896.)
    1 Election Law — Assembly district convention'—Roll.
    Where a person, designated by the Republican county committee of the city of New York to preside over an assembly district convention as temporary chairman, refuses, upon a demand made, to call the roll of the certified members of the convention, upon a vote for the office of temporary' chairman, and puts the question to vote viva voce, his action is illegal. The roll is the only evidence of the true membership of the convention; and the right of the delegates named in it to their seats cannot be questioned in the proceedings for temporary organization.
    ¡3 Same —Rival convention.
    Where, upon a refusal to call the roll, another convention is held in the same hall upon a roll call, in which a majority of the legal delegates participate, the nominee of the latter convention will be deemed regular.
    Application to review the decision of the board of police of the city of New York in détermining that the certificate of nomination filed on behalf of Lawrence E. BroWn for the nomination as ", member. of assembly in the twenty-ninth assembly district be accepted and that' his name' be ordered printed as the regular '. nominee of the Republican party for said office, and that the. Certificate.ofSamuel GL French for the same office' be rejected.
    Frank D. Pavey, for motion.
    Edward F. Brown, opposed.
   Beekman, J.

The necessity for an immediate decision in this matter and the press of other business in this part of the court leaves me nó time to do" more than present, in brief form, the- conelusion to which I have come after an examination of the very voluminous record submitted for my consideration. I do not think it is necessary for,me to determine whether, under the constitution of the- Republican organization, the county committee has . any power, to designate a person to call the convention to order and preside over the election of. a temporary chairman, in view of the fact, that the act of Hr. HcOonaughy in so doing was generally assented to. The fact that he assumed to do so .by virtue of such designation was made very clear when, in answer to a-question respecting his authority, he replied that he claimed to act under authority of the -county committee, a claim which was allowed to pass' unchallenged, and upon the faith of which,' apparently, / the element in the convention favoring Mr.' Brown’s ■ nomination yielded a -tacit consent to' Mr. McCdnáughy’s .action. It was only' when.he refused to call the roll of the .convention on the vote for temporary'chairman that a protest was made against his conduct, and the proceedings followed which resulted in the election of rival officers and nominees by the contending factions.

The claim is now made that Mr. McConaughy "did not have the roll with him, but it is also accompanied by the frank admission. that even if it had been in his. hands, he would have refused to recognize it.. The papers, .however, show that a certified copy of this roll had been transmitted to him when he was notified of his selection, and had it'not -been for his predetermination not to use .it,, there can be no doubt that he would have brought it with him to the convention, -A few words respecting the character of'this roll, becomes necessary. . .

By the constitution of. the Republican organization it is provided. that after- the polls are closed at a primary, election the inspectors shall proceed-with the canvass .of the ballots and “ shall publicly announce the result as soon as ascertained, and shall, before leaving the place of meeting, certify the same in duplicate, and within twenty-four hours shall deliver one copy of the returns to each person or delegation elected, and file the other with the secretary of the county committee.” The paper transmitted to Mr. Mc-Conaughy by the secretary of the county committee was a certified copy of the return made by the inspectors of election at the primary election which selected delegates to the assembly district convention, and which, under this provision of the constitution, has been filed with the county committee.

There is nothing in the constitution which states the purpose of this filing, but it may properly be inferred that its object was to supply evidence, for whatever purpose it might be useful, of the due election of such delegates. It was properly susceptible of use for the purpose of making up a temporary roll of the convention, although such roll could also have been made 'from the duplicate certificates of election issued by the inspectors of election to the delegates who had been chosen.

The necessity for such preliminary roll in such cases is plain; .otherwise the officer or person calling the convention to order and presiding over its action, in the selection of the temporary chairman, is absolutely without proper evidence before bim of the right of those voting to take part in the proceedings of the convention. The duly certified action of the inspectors of election and the right of the delegates who are certificated by them to then seats cannot be questioned in the proceedings for temporary organization, for it is the delegates themselves who are the judges of the election and qualification of the members, and until- the credentials have been passed upon by them they are unassailable. The action, then, of Mr. McConaughy in repudiating this roll was a mistake on his part, and the selection of the temporary chairman upon a -mere viva voce vote, where there was "a volume of voices both for and against the nominee, was apparently unsupported by any evidence of the right of those voting to do so. The danger of taking a vote viva voce under such circumstances is manifest, as no opportunity is presented for an objection to the reception of a vote, and the chairman, even presuming that he had personal knowledge with respect to the authority of any of the delegates, would be utterly unable to determine in the unison of voices whether all of those who participated were entitled to do'so. I think, therefore, that when a demand was made for a roll-call on the election of the ternporary chairman, it should have been recognized by him, and if such a roll was not at hand, it should have been made up of the-certificates of election in the possession of the delegates.

Having accepted -the authority of the county committee in designating him, he should have recognized the roll which had been furnished to him; and for the purpose of showing that there was precedent for this, the respondent instances the case of another local convention within the'same- assembly district in' which a similar -designation had been made by the county committee of a person to call the convention to order, and the acceptance, of a Similar roll of delegates as the basis of the.prelhhinary organization. Under these circumstances it becomes necessary to consider whether the action-taken in the selection of Mr. Elsberg as'temporary chairman, thus displacing-Mr. McGonaughy, was substantially the action of a majority of the convention.: In such cases .as .this, .the court will ignore the form and consider the- substance of things; where the interests of justice seem to require it. I shall not, therefore, inquire into the jurisdiction of the committee on organization to pass the resolution which they did that, in the event of Mr. McConaughy refusing to recognize the roll of delegates which had been furnished to him, the. convention should be called to order by Mi'. Buchanan. The action of the latter seems to have been supported by a majority of the delegates, and as it was largely formal in,'its nature, consisting simply in' putting a nomination for temporary .chairman to vote, whatever was done was the act of the. delegates, who alone had the right of determining the temporary organization of the convention. The course pursued in. the selection of Mr. Elsberg, as temporary chairman, was in accordance with a practice which,, as I have stated above, should have been - followed by Mr. McGonaughy. There was a roll-call based on the official action, of the inspectors of election, and the selection was' made upon that basis. In that action sixty-five delegates participated, which was more than a majority-of the whole,- the total number being-109.

Affidavits have been produced which Seem to sustain the claim that Mr. Brown, who was the -nominee of the Elsberg convention, received á majority of the votes of the delegates. As these two conventions, so to speak, were both being held at. the same time in one room, in an atmosphere also of extreme partisanship and passion, the confusion which'existed was. inevitable, and a liberal allowance must, therefore, be made for lack of formality. I have felt, therefore, that in disposing of this matter the propriety of whatever was done should be determined rather: by the sanction given to it by the delegatés than by the formality with which such sanction was expressed; and by the fairness with which the proceedings were conducted on either side. The division which resulted in the nomination of the rival candidates is directly traceable to the refusal of McConaughy to recognize the authoritative character of the roll of delegates above referred to, or to make a roll from the credentials in the hands of the delegates then present, or to adopt any other method by which it could be ascertained whether those voting viva voce had any right whatsoever to take part in the work of the convention. For this refusal he was substantially deposed by a majority of the delegates, and the action subsequently taken by the convention and the nomination of Mr. Brown should, I think, for the reasons which I have given, be recognized as legal. This- was the conclusion to which the police commissioners came by unanimous vote, and being of the opinion that their conclusion was a just one under the circumstances of the case, it follows'that their action must be confirmed.

The motion is, therefore, denied.

Motion denied.  