
    In the Matter of the Application of Charles H. Duell, Appellant, for an Order to Review the Decision of the Board of Elections of the City of New York, Respondent, and Fixing the Order of Candidates for Party Positions on the Republican Primary Ballot to Be Voted for at the Primary to Be Held March 26, 1912.
    First Department,
    March 15, 1912.
    Election Law — primary election—order on ballot of names of candidates for delegates to national convention — power of court to interfere.
    Since there is no direction in the Election Law as to the order in which names of candidates for delegates to the National convention shall be placed upon the ballot, the court has no power to interfere with the acts of the hoards of elections.
    Latjghlin and Dowling, JJ., dissented, with opinions.
    Appeal by the petitioner, Charles H. Duell, from an order of the Supreme Court, made at, the New York Special Term and entered in the office of the clerk of the county of New York on the 13th day of March, 1912, denying the petitioner’s application herein.
    
      William M. Bennett, for the appellant.
    
      Terence Farley, for the respondent.
   Ingraham, P. J.:

The majority of the court is of the opinion that there is no direction contained in the Election Law as to the order in which names of candidates for delegates to the National convention shall be placed upon the ballot; and that there being no direction as to the position in which these names should appear on the ballot, the acts of the board of elections did not violate the statute, and, therefore, the court has no power to interfere.

For this reason we think the court has not the power to reverse the action of the board of elections, and the order appealed from should be affirmed.

McLaughlin and Miller, JJ., concurred; Laughlin and Dowling, JJ., dissented.

Laughlin, J. (dissenting):

I dissent from the decision and am of opinion that the names of the delegates to the National convention should be printed at the head of the primary ballot. The primary election to be held on the twenty-sixth of the present month is expressly declared by section 53 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as added by Laws of 1911, chap. 891, and amd. by Laws of 1912, chap. 4) to be for the purpose of choosing delegates and alternates to the National convention, to nominate candidates of the respective parties for the office of President and Vice-president of the United States. Incidental to that main purpose of the presidential primary, the Legislature by a recent amendment of the statute has authorized the electors of each party to elect members of their respective party organizations at the same time. The board of elections, instead of recognizing and following the provisions of the law declaring this spring primary to be for the purpose of choosing delegates to the National conventions, thus making it a presidential primary, appears to have deliberately planned to make it a primary for the election, not of delegates to the National convention and to the State convention to elect delegates to the National convention, but of members of the party organization, and to render it as difficult as possible for the electors to appear at the primary and discover upon the ballot the names of the candidates for election as delegates to the National convention by direct vote of the people. They have followed no rule in preparing this ballot. They have preceded the names of the candidates for election as delegates to the National convention by candidates for members of party committees, and they have followed them by candidates for members of other party committees. They have not afforded the people an opportunity to discover the names of the delegates to the National convention, either at the head or the foot of the ballot. The delegates to the National convention are not enumerated in section 58 (as added by Laws of 1911, chap. 891). It is, however, provided in that section with respect to the form of the ballot for the fall primary that the names of candidates for nomination to public office and for election as delegates shall precede on the official ballot the names of candidates for election as members of party committees. Thus the Legislature recognized that candidates for delegates, even to a State convention to nominate State officers, should have precedence on the ballot over candidates for membership on party committees; but the order for the ballot now under review gives greater dignity to party, Congressional and county committees than to the position of delegate to the National convention. The board of elections, by the action now under review, has determined that membership in local party organizations is of more importance and consequence than proper nominations for the office of President and Vice-president of the United States, and candidates for delegates to the National convention have accordingly been subordinated to all candidates for membership on party committees, excepting executive, borough, aldermanic and Municipal Court district committees. It is not even pretended that there is any warrant in the law or reason or justification for thus arranging the names on the ballot; nor is any suggestion offered as to how it happens that candidates for members of four of the committees have been subordinated to candidates for election as delegates to the National convention, thus placing the latter upon the official ballot between candidates for membership on party committees. The mere statement of the facts, without argument, shows that if discretion is vested in the board of elections with respect to preparing the form of the primary ballot, it has been so abused that the action taken by the board should be annulled, for it shows a deliberate attempt to confuse the voters and to render it most difficult, if not impossible,. for them to vote intelligently and to have their will recorded. I am of opinion, however, that the board of elections had no discretion in the premises. The Legislature thus, by section 53 of the Election Law, having made the provisions of section 58 thereof applicable to the election of delegates to the National convention, it necessarily follows, I think, that, being a provision for the election of delegates, as distinguished from members of a party committee, the names of such delegates should either precede or follow the names of delegates to the State convention. The only room for doubt is as to whether they should precede or follow on the ballot the names of delegates to the State convention. The only discretion given to the board with respect to the order of names on the ballot is concerning the candidates for membership on certain party committees. I find nothing in the statute to indicate that the Legislature intended to leave any discretion to the board with respect to the place on the official ballot of the names of candidates for public office, or for delegates to any convention. The fair and reasonable construction of the statute, in view of the fact that on the official ballot the presidential electors precede all other names, requires that the names of the delegates to the National convention shall appear at the head of the ballot, and that their place should not be subordinated, even to delegates to the State convention to nominate other delegates to the National convention. By fair analogy from other statutory provisions, by which the positions on the official ballot for the presidential and annual elections, and on the official primary ballot as well, are arranged to give precedence, as far as may be, according to the rank and dignity of the office and position, I am of opinon that the names of the delegates, commissioned by direct vote of the people to record their will in the National convention, should precede the names of delegates to the State convention, who are to represent the people, not in the National convention, but in electing other delegates thereto.

The provisions of section 56 of the Election Law (as added by Laws of 1911, chap. 891), in my opinon, clearly authorize the court to review the action of the board of elections, and being of opinion that the action of the board now under review is a plain, deliberate violation of the statute, and an attempt to thwart the will of the people, I vote for reversal and for an order commanding the board of elections to place at the head of the ballot the names of candidates for election as delegates to the National convention.

Dowling, J. (dissenting):

I dissent, although on different grounds than those given by my brother Laughlin. Under section 53 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as added by Laws of 1911, chap. 891, and amd. by Laws of 1912, chap. 4) provision is made for a primary election of delegates to the National convention to be held on the last Tuesday in March. Either provision must be made for such delegates upon a single official ballot, which shall include all other persons to be voted for, ór they must be elected upon a separate ballot. As there is but a single ballot provided for, it seems to me that section 58 (as added by Laws of 1911, chap. 891) suggests the arrangement of the names thereon in a logical order. It enumerates three classes of places to be filled:

1. Candidates for specific offices.

2. Delegates to conventions.

3. Members of committees.

No specific provision has been made for the delegates to the National convention. The only discretion vested in the board of elections is as to the order in which committees shall appear. The election of National delegates being specifically provided for at this March primary, and their place not having been designated, either they should have a separate ballot, or if they are to appear on the same ballot as the other persons to be chosen then the proper place is second upon the ballot after the delegates to the State! convention, who by the provisions of the law are to follow the names of individual candidates for office as specified by section 58.

Order affirmed.  