
    The People of the State of New York ex rel. Patrick H. McCarren, Appellant, v. John T. Dooling and Others, Commissioners of Elections, Constituting the Board of Elections of the City of New York, Respondents.
    Second Department,
    July 28, 1908.
    Election Law — appointment of election officers — Election Law and Primary Law construed — recognition of faction by State convention — court — power to construe Primary Law.
    The Legislature. has power to provide a system regulating the machinery of a political party.
    Section 12 of the Election Law, providing that if in any city more than one list of election officers 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,.must be construed in the light of section 9 of the Primary Law providing 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 executive committee or officers thereof given to any party in such city or county by section 12 of the Election Law. Such construction must be pláced upon said statutes, as shall give effect to the intention of the Legislature. . Although said section 12 of the Election Law as originally enacted in 1896 contained the proviso that if more than one list of election officers be submitted in the name of the same political party only that list can be accepted which is authenticated by the proper officers of the faction “ which was organized as regular by the last preceding State convention of such party,” and although said proviso was permitted to remain in the subsequent amendments to said section,' nevertheless on the enactment of the Primary Law in 1898, which expressly repealed all acts or parts of acts inconsistent therewith, the said proviso of section 12 of the Election Law was repealed, as otherwise the Primary Law would have been rendered nugatory.
    Hence, a “ faction or section ” of a political party cannot file a list of election officers merely because it has been recognized as regular by the State convention, if in fact the list was not filed by the chairman of any executive committee of . a county committee constituted or attempted to be constituted by election at the primary election on the annual primary day.
    The recognition of a faction as regular by the State convention does not ipso facto absolve that body from compliance with the Primary Law in constituting its committees. A faction stamped as regular has no prerogative above the law, and must be regular in its observations of the law as well as regular in its recognition by the State convention.
    Where an alleged committee of a faction of a political party was not voted for and made no contest for election as county committeemen at the previous primaries, no “ faction, group or section ” within the meaning of the Election Law is created or exists for the purpose of presenting the matter to the State convention to give it jurisdiction.
    The court has jurisdiction to construe and enforce the Primary Election Law at the suit of any party aggrieved by its operation.
    Gaynor, J., dissented in part, with opinion.
    Appeal by the relator, Patrick H. McCarren, from an order of the Supreme Court, made at the Kings County Special'Term and entered in the office of the clerk of the county of Kings on the 14th day of July, 1908, denying the relator’s application for a peremptory writ of mandamus compelling the board of elections to select and appoint election officers from the list filed by the relator. (See 60 Misc. Rep. 132.)
    
      Isaac M. Kappper, for the appellant.
    
      James G. Church, for the respondent Delaney.
    
      Terence Farley [Francis K. Pendleton with him on the brief], for the board of elections.
   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.

Gaynor, J. (concurring):

At the last state convention of the Democratic party, held in Tune of this year, contesting delegates -presented- themselves purporting to be accredited from- two organizations-in Kings county, respectively, each calling itself the Democratic party in Kings county. The convention admitted the delegates of one of them, and also passed a resolution that whereas there were two sections, groups or factions of the Democratic party in. Kings county, it organizes and recognizes ” that one .as the regular Democratic party in Kings county. Each of these organizations has now by .the chairman of the executive committee of its county committee certified to the Board of Elections of the City of New York a list of names of persons for appointment as inspectors of election by that board, as provided by section 12 of the Election Law. That section also provides that if 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 ”, The Election Law existed before the Primary Election Law, but unless it is not possible for factions to exist under the Primary Election Law, the provision quotéd in the foregoing was not shorn of application by the enactment of the Primary Election Law. If factions may arise notwithstanding the Primary Election Law, then the said provision still has force and application; and I think no one who considers the question can fail to see that factions may still arise. If, for instance, a party’s county committee should withdraw from the party by supporting the state candidates of the opposite party, it would no longer be regular but only factional at best, and the state convention, which concededly is the sole judge of the party faith and principles, could cast its delegates out, and recognize another faction in its stead; and that is what was done in the present case. Instead of leaving the Board of Elections to determine which faction is the regular one, or the most regular, or select one of them, in the case of lists for inspectors purporting to be certified to it by different organizations, the Election Law provides, as has been seen, that it shall follow the determination on that subject made by the last state convention. And the courts are without power to review or nullify such determination of the state convention. The first section of the Primary Election Law excludes its application from state conventions. If the Primary Election Law made the determination of the state convention re viewable by the courts,-then-they could inquire as to whether factions really existed, and if not, set at naught such determination. Concededly the courts had no such powér prior to the passage of the Primary Election Law, and it must be conceded they have it not now, unless the Primary Election Law confers it, and concededly it does not. By providing that the state convention may decide between contending factions, and organize and recognize one as regular, section 12 of the Election Law necessarily confers on the state convention power to decide what a faction is, and that factions exist. The courts have no power to define a faction, or construe the said Laws for the purpose of defining a faction, in order to decide that there were no factions before the state convention. That question is left now, as it always has been in this state, to the convention itself. . That the county committee of the faction or organization discarded by the state convention was regularly elected in 1907, makes no difference. The organization was outlawed, so to speak, by the determination of the state convention, as- a whole and in all of its parts.

. While these are my views, they are not shared by a majority of the court, and I yield my judgment to theirs ; the more willingly as I expressed the same views in the case of People v. Gleason (18 Misc. Rep. 511) several years ago, and mistrust that for that reason I may be unduly tenacious of them now.

Order reversed, with ten dollars costs and disbursements, not as matter of discretion but as matter of law, and motion granted, with costs. Leave to appeal to the Court of Appeals granted. 
      
       See Laws of 1898, chap. 179, as amd. by Laws of 1899, chap. 473.— [Rep.
     
      
       See Marbury v. Madison (1 Cranch, 163).— [Rep.
     