
    In the Matter of William F. Ahern, Appellant, against Board of Supervisors of the County of Suffolk, New York, Respondent.
    Argued May 26, 1959;
    decided July 8, 1959.
    
      
      George W. Percy, Jr., for appellant.
    I. In the County of Suffolk, the Board of Supervisors cannot appoint an individual to the Board of Elections of Suffolk County as a Commissioner of Elections belonging to and representing the Democratic party on the said Board of Elections, unless that individual has been certified and recommended by the Chairman of the Suffolk County Democratic Committee. (Matter of Thomas v. Wells, 288 N. Y. 155; Matter of Kane v. Gaynor, 144 App. Div. 196, 202 N. Y. 615; People ex rel. Woods v. Flynn, 81 Misc. 279.) II. Where the facts are not in dispute, mandamus, rather than a proceeding in the nature of quo warranto, is the proper action to try title to public office. (People ex rel. Sulzer v. Sohmer, 211 N. Y. 565; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; People ex rel. Wren v. Goetting, 133 N. Y. 569; Matter of Gardner, 68 N. Y. 467; Matter of Teeple v. McKeon, 273 App. Div. 936; People ex rel. Lewis v. Brush, 146 N. Y. 60; People ex rel. Dolan v. Lane, 55 N. Y. 217; Matter of Bailey v. Berry, 240 App. Div. 771; People ex rel. Howard v. Board of Supervisors of Erie County, 42 App. Div. 510, 160 N. Y. 687; People ex rel. Kelly v. Common Council, City of Brooklyn, 77 N. Y. 503; Matter of Lenc v. Zicha, 223 App. Div. 158, 250 N. Y. 541; Matter of Sylvester v. Mescall, 277 App. Div. 961; Matter of Rivette v. Baker, 265 App. Div. 89; Matter of Schlobohm v. Municipal Housing Auth. for City of Yonkers, 270 App. Div. 1022, 297 N. Y. 911; Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 199 Misc. 997, 278 App. Div. 959.) III. Petitioner has standing to question the appointment made by the Board of Supervisors. (People ex rel. Daley v. Rice, 129 N. Y. 449; Matter of McCabe v. Voorhis, 243 N. Y. 401; McGovern Trucking Co. v. Moses, 277 App. Div. 758; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677.)
    
      
      Pierson R. Hildreth, County Attorney (Pierre G. Lundberg and Edward Le Vanda of counsel), for respondent.
    I. Upon the conceded facts of this proceeding the Democratic party Chairman waived, renounced and forfeited any privilege or right to recommend a person for appointment as Commissioner of Elections. (People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; Matter of Mullen v. Heffernan, 193 Misc. 334, 274 App. Div. 972, 298 N. Y. 785; People ex rel. Woods v. Flynn, 81 Misc. 279.) II. The sole appointing authority is the Board of Supervisors. Faced with the refusal of the party Chairman to recommend, the appointment by the board without such recommendation was valid. (People ex rel. Balcom v. Mosher, 163 N. Y. 32; Matter, of Thomas v. Wells, 288 N. Y. 155; People ex rel. Woods v. Flynn, 81 Misc. 279; Matter of Kane v. Gaynor, 144 App. Div. 196, 202 N. Y. 615; People ex rel. Mullarkey v. Board of Supervisors, 180 App. Div. 125; People ex rel. Chadbourne v. Voorhis, 236 N. Y. 437; Matter of Moore v. Walsh, 286 N. Y. 552; Matter of Koenig v. Flynn, 258 N. Y. 292; Matter of Meyer, 209 N. Y. 386; Matter of Reynolds, 202 N. Y. 430; Macrum v. Hawkins, 261 N. Y. 193; Matter of Burns v. Wiltse, 303 N. Y. 319; Matter of Berger v. Walsh, 291 N. Y. 220.) III. The petition was properly dismissed by the Appellate Division upon the objections in point of law, and upon the facts admitted on the pleadings. (Matter of Carp, 221 N. Y. 643; Matter of Metz v. Maddox, 189 N. Y. 460; People ex rel. Sulzer v. Sohmer, 211 N. Y. 565; Matter of Teeple v. McKeon, 273 App. Div. 936; Matter of Gardner, 68 N. Y. 467; People ex rel. McLaughlin v. Police Comrs., 174 N. Y. 450; People ex rel. Wren v. Goetting, 133 N. Y. 569; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Walsh v. LaGuardia, 269 N. Y. 437.)
    
      Monroe Goldwater and Robert Conrad for Democratic State Committee of the State of New York, amicus curies.
    
    I. The challenged action of the Suffolk County Board of Supervisors was violative of the New York State Constitution and of the Election Law of the State of New York. (Matter of Kane v. Gaynor, 144 App. Div. 196, 202 N. Y. 615; People ex rel. Woods v. Flynn, 81 Misc. 279.) II. This article 78 proceeding is the proper one in which to obtain the relief sought, and the proceeding is properly brought by petitioner. (Matter of Sohlobohm v. Municipal Housing Auth. for City of Yonkers, 
      270 App. Div. 1022; Matter of Rivette v. Baker, 265 App. Div. 89; Matter of Sylvester v. Mescall, 277 App. Div. 961; Mattet of Felice v. Swezey, 278 App. Div. 958; Matter of Lenc v. Zicha, 223 App. Div. 158, 250 N. Y. 541; People ex rel. Kelly v. Common Council, City of Brooklyn, 77 N. Y. 503; People ex rel. Howard v. Board of Supervisors of Erie County, 42 App. Div. 510, 160 N. Y. 687; Matter of Smith v. Dillon, 267 App. Div. 39; Matter of Pansmith v. Williams, 201 Misc. 759.) III. Petitioner is a proper party to bring this proceeding. (Matter of Rivette v. Baker, 265 App. Div. 89; Matter of Kornbluth v. Rice, 250 App. Div. 654, 275 N. Y. 597; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677.)
    
      Henry M. Zaleski and Reginald C. Smith for William J. Leonard, Supervisor of the Town of Riverhead, amicus curies.
    
    I. Neither the Constitution nor section 30 of the Election Law provides for the nomination of a Commissioner by a party Chairman. II. The function of the Board of Supervisors was either governmental, legislative or quasi-judicial. (Matter of Thomas v. Wells, 288 N. Y. 155, 263 App. Div. 759; Matter of Cary v. Binghamton City Council, 265 App. Div. 83, 290 N. Y. 247; Matter of Murphy v. Britt, 163 App. Div. 734, 212 N. Y. 582; Matter of Felice v. Swezey, 278 App. Div. 958; Matter of Mapes v. Swezey, 278 App. Div. 959.) III. The law abhors a vacancy. (People ex rel. Kingsland v. Palmer, 52 N. Y. 83.)
   Desmond, J.

Petitioner, alleging that he “ is a resident, taxpayer and voter in the County of Suffolk, State of New York, and an enrolled member in the Democratic Party ”, brought this mandamus-type (Civ. Prac. Act, art. 78) proceeding against the Board of Supervisors of Suffolk County for an order to direct the board to revoke the appointment of Arthur M. Weiss as a Commissioner of Elections for the county. He prayed also that the court command the board to desist from appointing any person to the Suffolk County Board of Elections as representing the Democratic party of that county on said Elections Board, unless and until such person shall have been duly certified and recommended to the Supervisors by the Chairman of the Suffolk County Democratic Committee. The petition shows that on December 30,1958, the day before the expiration of his term, one Havens, the incumbent Election Commissioner representing the Democratic party in Suffolk County, resigned, creating a vacancy. On February 16, 1959 the Board of Supervisors appointed or attempted to appoint Arthur M. Weiss to the Board of Elections as the Democratic member although the name of Weiss had never been certified to the Board of Supervisors by the County Chairman of the Democratic Committee. The answering papers show—and it is undisputed — that prior to January 2,1959 the Chairman of the Suffolk County Democratic Committee, Adrian Mason, had certified and recommended himself to the Board of Supervisors pursuant to section 52 of the Election Law as a fit and proper person to be appointed a Commissioner of Elections representing the Democratic party. On January 2, 1959 the Board of Supervisors voted on this recommendation but unanimously rejected it. On three later occasions County Chairman Mason resubmitted his name and three times the Board of Supervisors unanimously rejected it. Chairman Mason stated publicly that he would continue to recommend himself and no one else for the position of Commissioner of Elections. On February 16, 1959 the Board of Supervisors, on motion of a Democratic member, appointed Arthur M. Weiss, an enrolled Democrat, to fill the vacant position although the name of Weiss had not been submitted by the Chairman of the Democratic County Committee as required by subdivision 2 of section 52 of the Election Law. Meanwhile, William F. Ahern, the same citizen and enrolled Democratic party member who later brought this present proceeding, had brought an injunction action against the other (Bepublican) Commissioner of Elections and against other county officials alleging, in substance, that the Board of Elections had no legal existence and could not function and was not authorized to function since one member only was in office. In that injunction action, on January 22, 1959, a Supreme Court Justice granted a temporary stay which was afterwards vacated (see 7 A D 2d 546).

This present article 78 proceeding came on for argument at Special Term on the petition, answer and various exhibits. That court wrote an opinion in which it held: first, that mandamus was an appropriate remedy since there were no disputed facts; second, that the Board of Supervisors had acted without power in appointing Weiss without a recommendation from the Democratic County Chairman, and, third, that the resolution appointing Weiss was void.

The Board of Supervisors appealed to the Appellate Division, Second Department, which by a divided vote reversed the order below on the law and facts and dismissed the proceeding. The Appellate Division order refers to and incorporates the court’s opinion. That opinion says that the petition should be dismissed “asa matter of law or, in view of the nature of the legal questions presented and the factual situation disclosed, as a matter of discretion.” The point of law on which the Appellate Division reversed was that petitioner, in his individual capacity as a taxpayer, resident and voter, had no clear legal right to enforce and that, accordingly, he had no right to bring a mandamus proceeding. The Appellate Division majority refrained from passing on the underlying legal question as to whether the Board of Supervisors can under any circumstances appoint an Election Commissioner not recommended by the County Chairman. The dissenters in the Appellate Division were of the opinion that mandamus was an appropriate remedy, that the Board of Supervisors acted beyond its powers and that the mandamus order was validly granted by the court below.

In the majority Appellate Division opinion there are set forth the reasons which inclined the court to say that, aside from questions of law, the situation was such as to move the court to exercise its discretion in striking down the mandamus order. The Appellate Division majority pointed out that if the appointment of Weiss were held invalid there would be in office in Suffolk County a single Election Commissioner without any right or power to perform the board’s duties and that this situation might ‘ result in a complete breakdown of the public service performed by the Board of Elections, and the consequent disenfranchisement of the voters of Suffolk County.” The Appellate Division went on to say that mandamus is an extraordinary remedy, the issuance of which is to a great extent discretionary and that the courts are reluctant to issue it if disorder and confusion in public affairs would result, even in cases where there might be considered to be a strict legal right to enforce. That latter language and thought were taken from Matter of Andresen v. Rice (277 N. Y. 271, 282), where our court, although holding that noncompetitive appointment of State police officers was unconstitutional, refused to remove the officers theretofore illegally appointed or to go further than to declare that future appointments must be from competitive examination lists.

In another part of the majoriity opinion in the present case, the Appellate Division held that the question as to whether the Board of Supervisors could ever under any circumstances appoint a person not certified by the party Chairman should not be decided on a record like the present one but may be better decided after all the facts are presented and determined ”.

It is completely clear here that the Appellate Division not only said but meant that its reversal was not only on the law (that is, that petitioner had no standing) but was, in addition and alternatively, an exercise of the court’s discretion because of the damage to the public interest which might result from a mandamus order and, also, because this record does not fully set forth all the facts that might be pertinent to a determination of the question of whether the circumstances were such as to make it possible for the Supervisors to appoint an Election Commissioner not recommended by the County Chairman. This reversal and dismissal of the petition may not be held by us to have been an abuse of discretion. The Appellate Division was at pains to point out that the underlying questions of law and perhaps of fact could be determined in a quo warranto action in which the claimant Weiss could be made a party. He has not been made a party in the present mandamus proceeding.

Since, therefore, the reversal in the exercise of discretion was a proper one, we do not reach the question as to whether the Appellate Division’s reversal, insofar as it is on the law, is likewise correct.

The order should be affirmed, without costs.

Fboessel, J. (dissenting).

I dissent and vote to reverse and reinstate the order of Special Term. For the reasons hereinafter stated, it seems clear to me that the power to appoint rests only in the Board of Supervisors, which must, however, exercise such power within the statutory limitation that the appointee must be recommended by the party Chairman. The attempt to appoint Weiss was, therefore, a nullity and a violation of the constitutional and statutory scheme for a truly bipartisan Election Commission.

Petitioner, as is any citizen, is a legitimate party in interest, since the public interest is involved and interference with the regular, constitutional and statutory election processes is clearly taking place. In these circumstances it was an abuse of discretion to deny relief to petitioner. Quo warranto does not seem to be in order, since there are no rival claimants to the office. Moreover, Weiss does not claim office under color of right since his appointment was on its face violative of statute.

The argument that there was no alternative to the action taken by the board is without substance, since the party Chairman id making the statutory recommendation is performing a public duty. Accordingly, he too can be compelled to carry out such duty. If he, by his refusal to recommend any other person, is frustrating the process of appointment in an arbitrary and capricious manner, he may be compelled to perform his statutory duty properly. If, on the other hand, the board should continue to reject additional recommendations, it may be held to be arbitrary. It cannot, however, disregard the plain provisions of law and make appointments as it sees fit. The public interest requires that such illegal procedure be disapproved.

Judges Dye, Fuld and Yak Yoorhis concur with Judge Desmokd ; Judge Froessel dissents in an opinion in which Chief Judge Cokway and Judge Burke concur.

Order affirmed, without costs, upon the ground that the Appellate Division acted within its discretion when it dismissed this petition (see Matter of Andresen v. Rice, 277 N. Y. 271, 282). We pass upon no other question.  