
    PEOPLE ex rel. HAYES v. MacLEAN.
    
      N. Y. Supreme Court, First District, Chambers;
    
    
      October, 1890.
    1. Elections; inspectors in H. 7. city ; selection from different political parties.] The only way in which it can be determined whether an organization in the city and county of New York belongs to either of the political parties, so as to require the police board (under L. 1872, c. 675, § 13, as amended by L. 1887, c. 490, § 1) to select from it an inspector of election, is by ascertaining whether that organization has been recognized as such by the State committee or a State convention of that party.
    2. The same; JST. 7. county democracy.] Hence, where it appeared upon an application for a peremptory mandamus to require the police board to recognize the county democracy of New York city and county in the selection of inspectors of election, that that organization had been accorded, for several years prior, one-half of the entire representation in the conventions of the democratic party, and was then represented in the State committee of the democracy,—Held, that the relator was entitled to the writ.
    3. The same; Voorhis democracy.] But the statute does not give an organization claiming to be democratic, (the so-called Voorhis democracy) but which has never cast any votes nor entered as an organization into any canvass or election, or shown that it represents any democratic voters, the right to select an inspector of election.
    Motion for peremptory mandamus.
    In the petition of the relators, John Hayes and Joseph E. Newburger, it appeared that they were a committee of the county democracy of the city and county of New York, appointed to secure the representation of that organization in the appointment of election inspectors in each election district in the .city of New York; that the county democracy had been, for more than nine years prior, a political organization, and had supported the candidates of the democratic party for State offices, and had participated by its delegates in the State conventions of that party, and that by the rules ■and practice of the conventions of that party in this State during the past ten years, the representation of the city and -county of New York in the State and national conventions, and the State and national committees, had been equally divided between the county democracy and another democratic organization known as Tammany Hall, and that since 1879 the police board had been accustomed to appoint one inspector of election for each election district for the county ■democracy and one for Tammany Hall, dividing the election inspectors appointed to represent the democratic party in the State equally between the two political organizations; and the relators alleged that the request of the organization made orally and in writing to the respondents, the police 'Commissioners, that they should appoint from the organization one-half of the democratic inspectors and other election officers throughout the city for the election of 1890, had been tabled; that the respondents had appointed two election inspectors in each district from the members of the republican party and were about to appoint the remaining inspector and other election officers from the members of the democratic party who were not members of the county democracy, •and that the respondent, Voorhis, claimed that one-half of ’the democratic election inspectors should be appointed from the so-called Voorhis democracy, excluding the county •democracy from consideration, and that the so-called Voorhis ■democracy intended to support the county ticket of Tammany Hall at the election.
    Petitioners therefore asked for a peremptory mandamus requiring the police commissioners to appoint from the members of the county democracy one inspector of elections for the year 1890 for each election district, or in the alternative, directing them to recognize the members of the county democracy as members of the democratic party, and as such entitled to consideration in each election district in the said city in the selection and appointment of inspectors of election and other election officers for the year 1890.
    The affidavit of the respondents in opposition, alleged the appointment of two republican election inspectors in each district and averred that they “ in good faith intended to-obey the statute by selecting two other inspectors of election of different political faith and opinions from their associates, on State issues, namely, from the members of the democratic-party which is the party in majority on State issues in the city and county of New York,” and “in good faith to make such selection of inspectors from the democracy as a whole; as to ensure a just and fair representation of every part of said party,” and “ that in consequence of local divisions within the democratic party and the presentation of names of persons as candidates for the position of election inspector from each of such divisions, there are at least three candidates named to the board of police for each inspectorship, and the deponents aver each for himself that it is his intention ‘ to look at the democratic party with a view to its relation to State issues as a general organization and as a whole and to select from it without respect to local divisions, temporary or permanent, competent and proper men to perform the duty of inspectors.’ ”
    
      Roger Foster and Charles A. Jackson, (Foster & Ackley,, attorneys) for the relators.
    The court is bound by the action, of the last State convention. In re Appointment of Supervisors of Election (9 Fed. R. 14) no prior demand wras necessary before the application for mandamus (State v. Common Council of Rahway, 4 Vroom [N. J.] 110). The objection to the want of previous demand and refusal may be deemed waived in view of the grounds on which the mandamus is. opposed (People ex rel. Wetmore v. Supervisors, 34 How. Pr. 379, 383). The conduct of the commissioners in refusing to take action upon the request of the relators amounts to a refusal (People ex rel. Wetmore v. Supervisors, supra; Queen v. Commissioners, 8 Ad. & El. 901, note). It is. not necessary that there should have been a refusal in so many words (King v. Proprietors, 3 Ad. & El. 217; Queen v. Select Vestrymen, 8 Ad. & El. 889). As to the construetion of the act of 1872, see People ex rel. McMackin v. Board of Police, 107 N. Y. 235; 46 Hun, 296, 677.
    
      W. Bourke Cockran and William H. Clark (corporation •■counsel) for the respondents.
   Lawrence, J.

The object of the act of 1872 was to •secure to each of the political parties of the State, differing •on State issues, one-half of the number of inspectors to be •appointed in each election district. The only way in which it can be determined whether an organization belongs to •either of the political parties, is by ascertaining whether that •organization has been recognized as such by the State committee and State convention of that party. It appears from 'the moving papers, and has not been denied, that the organization called the New York County Democracy has been -•accorded, for several years past, one-half of the entire representation in the conventions, and is even now so represented 'in the State committee of the democracy of the State of New York.

The amendment to the law in 1887, allowing a fifth inspector to be appointed, only applies to cases in which any •political party or organization has cast for its candidate for •any office as many as fifty thousand votes or upwards at the next preceding municipal election, and such organization was not entitled to representation under the former act. "The third democratic organization, which has been referred •to upon the argument in this matter, has never cast any votes, nor entered as an organization into any canvass or election, or shown that it represents any democratic voters.

I think, therefore, that the principles enunciated by the .general term of this department in People ex rel. Van Wyck v. Wheeler, etc. (18 Hun, 540, at p. 550), require me to grant the mandamus applied for, directing that one-half of the inspectors* * be selected by the county democracy. In the opinion in that case, the court very clearly states that if improper appointments be made, the court could not interfere by any summary process.

Let a writ be issued in accordance with these views. 
      
       Ch. 675, § 13, same statute, Consolidation Act of N. Y. City, L. 1882, c 410, § 185, as amended by L. 1887, c. 490, § 1.
     
      
       It was held in this case that the board of police commissioners, in ■selecting inspectors of election under the act of 1872, should treat the majority party as a whole, and not favor the local factions (People ex rel. Van Wyck v. Wheeler, 18 Hun, 540.)
     