
    In the Matter of the Application of Smith O’Brien and Others, Appellants, to Review the Attempted Nomination of Gilbert D. B. Hasbrouck, Respondent, for the Office of Justice of the Supreme Court for the Third Judicial District of the State of New York, under the Name and Emblem of the National Progressive Party. In the Matter of the Objections of John J. Linson and Others.
    Third Department,
    October 21, 1912.
    Elections — independent nomination for justice of the Supreme Court — requisite number of signatures —waiver of defect —right of electors to make nominations after party has failed to do so — presumption that petitioners act in good faith—nomination of candidate nominated on other ticket.
    Persons seeking to review an independent political nomination may waive in open court any objection that might be made upon the ground that the number of persons signing the petition is insufficient under the Election Law. ‘
    
      
      It seems, that 900 signers to a petition for an independent nomination for justice of the Supreme Court is not sufficient, and that the statute requiring 1,500 signers is.not unconstitutional.
    Although the National Progressive party, an incorporated independent political organization, made no nomination for justice of the Supreme Court in the third judicial district, a petition presented to the Secretary of State by the required number of electors in said district placing a person in nomination for justice of the Supreme Court effects a nomination for that office in the said party, where, being the first petition filed, it is regular upon its face and the subscribers state under oath their intention to support the candidacy of the person nominated and that they are members of said party, etc., for it will not be assumed in the absence of proof that they were acting in bad faith.
    The failure of said incorporated association and its committee to make such nomination did not debar the members of the party from making it. Such nomination would be invalid if it were shown that the. signers of the petition were outsiders, not members of said party and were attempting to appropriate its emblem to themselves. An independent party must act together and use the same emblem.
    Moreover, the members of said Progressive party had a right to nominate such candidate notwithstanding that he may also have been nominated for the same office by another political party.
    It is not necessary that the electors who signed the petition nominating the State and local officers within said district should be the same persons that Signed the petition nominating a justice of the Supreme Court.
    It is improper to include in a petition nominating a justice of the Supreme Court other nominations not to be elected within the district, for it is improper to include in one petition candidates to be voted for in several districts not coterminous.
    Smith, P. J., and Betts, J., dissented, with opinions.
    Appeal by Smith O’Brien and others from an order of the Supreme Court, entered in the clerk’s office of the county of Albany on the 21st day of October, 1912, overruling the objections filed to the independent certificate of nomination of Gilbert D. B. Hasbrouck for justice of the Supreme Court for the third judicial district of the State of New York.
    
      William M. Ckadbourne, for the appellants.
    
      A. T. Clearwater and George B. Wellington, for the respondent.
   Per Curiam:

We concur in the opinion of Mr. Justice Chester, delivered at Special Term, and desire to add only such observations as seem to us pertinent to matters suggested upon the argument. We desire to say, however, that, assuming that the petition is regular in all other respects, we personally feel that it does not contain a sufficient number of signers and that the present statute requiring signers to the number of 1,500 is not unconstitutional as to nominations in a judicial district and that the 900 which have signed the petition in controversy do not constitute a sufficient number to effect a nomination. The appellants concede, however, that 900 signers are sufficient and insist that the Court of Appeals so decided in People ex rel. Hotchkiss v. Smith (206 N. Y. 231). We do not understand that that decision so specifically holds as to the nomination in a judicial district, but the appellants have the right, as they do, to waive in open court the sufficiency of the numbers of signers to the petition, and we, therefore, assume, without deciding, that as to numbers it meets the requirements of the Election Law.

The situation and points presented upon the argument of the appeal are in brief as follows: The National Progressive party, an independent organization not yet having ripened into a regular political party, has nominated for the coming election by petition a full State ticket and a more or less full ticket in the judicial, congressional, senatorial and the assembly districts, and counties throughout the State. In the third judicial district, which embraces within its boundaries several counties, congressional, senatorial and assembly districts, no nomination for justice of the Supreme Court was made. At an early stage of the formation of the National Progressive ■ party there was incorporated a voluntary association known as the National Progressive Party, Incorporated, which assumed jurisdiction to a greater or less extent over the actions of the National Progressive party itself. The president of the incorporated society was made chairman of the Progressive party of the State. Discussion was had amongst the incorporators of the National Progressive Party, Incorporated, and a committee of the third judicial district, which we assume was named at some proper meeting of the members of the National Progressive party, with respect to making a nomination for justice of the Supreme Court of the third judicial district, and we assume that it was decided by such committee that no nomination should be made by the members of the Progressive party for justice of the Supreme Court of such district. Notwithstanding such determination by the incorporators of the National Progressive Party, Incorporated, and the committee appointed for the third judicial district, a petition was presented to the Secretary of State, signed by 900 electors of the district, placing the respondent in nomination for justice of the Supreme Court of that district, and, as we have said, on the concession of the appellants we assume that a sufficient number of electors signed the petition, if they were otherwise qualified so to do. When the petition was presented to the Secretary of State the situation was that the National Progressive party had made no nomination for the office of justice of the Supreme Court for the thud judicial district. The petition was in due form of law and was the only one presented to the Secretary of State for nomination of justice of the Supreme Court for the third judicial district.

In Matter of Independent Nominations (186 N. Y. 266, 279) it was held that the certificate of an independent nomination first filed was entitled to preference over those subsequently filed. The petition being regular and being the one first filed we think it must be assumed that the signers were members of the National Progressive party, and that it cannot be assumed that they were not in good faith members of that party but were in fact members of either the Republican or Democratic party. On the contrary, it must be assumed, in the absence of proof, and in view of the statement under oath of each subscriber to the petition that it is his intention to support at the polls the candidacy of the person nominated in the foregoing certificate of nomination, that the signers of the petition were members of that party and had the right, as such, to make a nomination for that party under that party’s emblem, and that it cannot be assumed, in the absence of proof, that such peti-' tion was made by members of another party, or that it. was made in bad faith for the purpose of foisting upon the National Progressive party a candidate distasteful to the leaders or the members of the party, or for the purpose of aiding, a nominee or member of another party. The appellants insist that from the mere fact of showing that the leaders and committees of the Progressive party had decided to make no nomination, and that the nominee, this respondent, was distasteful to them, they have proved that the petition was made in bad faith and that it was not made by the Progressive party itself, but by outsiders who had no right to make an independent nomination under the emblem of the Progressive party. We do not think the proof of this fact is sufficient to overcome the presumption which we think subsists, that the signers of the petition were in fact members of the National Progressive party. If the appellants had been able to show that the signers themselves were not members of that party the situation would have been quite different. The members of any party are greater than its committees, for the committees are but mere creatures of the body of the party itself.

Believing as we do that the objection on the part of the committee was not sufficient to deprive the members of the party from making a nomination if they saw fit, and assuming, as we must, that the petition was signed by members of the Progressive party, it follows that it was sufficient to place the respondent in nomination. There was not sufficient proof in the act of the committees to show that the signers themselves were not members of the Progressive party or to cast upon the respondent the burden of showing that the signers were in fact members of the Progressive party. If we are correct in this conclusion, and correct in taking the concession of the appellants that 900 signers were sufficient to place the respondent in nomination, it then follows that the Secretary of State properly filed the petition, and that he should not be required to withdraw it from his files. In this aspect of the case the provisions of section 125 of the Election Law. (Consol. Laws, chap. II [Laws of 1909, chap. 22], as amd. by Laws of 1911, chap. 649) have no application, for there is no dispute with respect to who shall be entitled to the emblem, for no one has attempted or is attempting to use it except members of the National Progressive party. They themselves have the right to use it because it is their own emblem. The situation would be entirely different if it was proved, or if it Could be assumed, that the 900 signers of the petition were outsiders and not members of such party, and were attempting to use the emblem of the Progressive party and appropriate it to themselves. An independent party must act together and use the same emblem. (Matter of Wise, 108 App. Div. 52.) The petition being in conformity to law, and the signers being presumed to belong to the Progressive party, they had a right to nominate the respondent as a candidate of their own party notwithstanding the fact that he may .have been also the candidate of another party for the same office.

It may be further said that it was not necessary that ,the same electors who signed the petitions for nominations for State officers for the Progressive party, or for any of the local offices within the third judicial district, should also sign a petition for nomination of a justice of the Supreme Court for that district. It would not have been proper to include in a petition nominating a justice of the Supreme Court other nominees who were not to be elected by such district, for it is improper to include in one petition candidates to be voted for in several districts not coterminous.. (Matter of Bennet, 116 App. Div. 138.)

It was, therefore, entirely regular that the petition for putting in nomination a justice of the Supreme Court should be a separate one and not complicated with the nomination of any other officers not elected fot that district.

Our conclusion is, in view of the concession of the appellants that a sufficient number had signed the petition to make it a lawful one, that the order should be affirmed, without costs, however.

All concurred, except Smith, P. J., and Betts, J., dissenting in memoranda.

Smith, P. J. (dissenting):

I agree with Justice Betts that the petition requires 1,500 signatures to conform to the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 122, as amd. by Laws of 1911, chap. 891).. The concession by the attorney for the National Progressive party should not be deemed a waiver by other appellants of this fatal objection to the certificate of respondent. Aside from this, however, I vote for reversal on the ground that the certificate nominating Justice Hasbrouck is the certificate of an independent body, within the statute, which has assumed the name and emblem of another independent body against the remonstrance of every committee or authority by which that body is represented, and without attempted' proof, even that those signing this certificate were members of the National Progressive party. The authority to declare this certificate invalid is found in the first provision of section 125 of the Election Law (as amd. by Laws of 1911, chap. 649). We do not need to look to the later provisions of the section therefor.

Betts, J. (dissenting):

The Election Law provides as to nominations of this kind, in section 122, as follows: “Independent nominations of candidates for public office other than municipal offices to be voted for in a district less than the whole State, but greater than a town or ward of á city, can only be made by one thousand five hundred voters or more of the district.” (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], § 122, as amd. by Laws of 1911, chap. 891.) The nominating certificate filed contains 900 signatures. Authority is claimed for the Validity of this certificate, as to numbers, by the decision in People ex rel. Hotchkiss v. Smith (137 N. Y. Supp. 177; modified and affirmed on appeal to the Appellate Division, 152 App. Div. 514; modified and affirmed by the Court of Appeals, 206 N. Y. 281). That was a case brought on behalf of the officials in charge of the National Progressive party for a mandamus to compel the board of election commissioners of Putnam county to disregard that provision of the Election Law which requires 1,500 signatures to make an independent county nomination and 800 signatures to make an independent nomination for member of Assembly, on the ground that such provision is unconstitutional and void. The court at Special Term granted the writ so far as requiring the county board of elections to receive an independent certificate for the nominations of county officers if it contained the signatures of 500 members of the National Progressive party, and held that the requiremént of 1,500 names was unconstitutional, but not interfering with the provision requiring 800 signers to nominate a member of Assembly. It appeared that the county of Putnam casts about 3,000 votes. Both parties appealed to the Appellate Division. The court there said: “ The word ‘ district ’ is abroad one. Included therein may be the judicial districts into which the State is divided, and also the territorial divisions designated as counties. In some of the districts,’ as, for instance, in some of the judicial districts of the State, the requirement as to number may not be unreasonable. We do not decide that question. * * * ' Our conclusion, therefore, is that the order should be modified by providing: 1. That defendants disregard as unconstitutional that part of section 62 of chapter 891 of the Laws of 1911 which purports to amend section 122 of the Election Law by increasing the number of -signatures required for an independent nomination of candidates for public office, other than municipal offices, to be voted for in a district less than the whole State but greater than a town or ward of a city, both as to members of Assembly and as to the other candidates designated therein.” The decision holds that requiring a greater number than 500 for such nominations is unconstitutional. Upon appeal to the Court of Appeals that court said: “We are also of the opinion that in declaring section 122 of the Election Law relating to the number of signatures required for independent nominations unconstitutional and void, it is necessary for us to consider in that particular the constitutionality of the statutes existing prior to the amendments of 1911. The number of persons required to sign independent certificates of nomination has been increased from time to time by the statutes. We find by considering the prior statutes that in the act of 1896 five hundred signatures to a certificate of independent nomination was (sic) required for member of assembly, and a like number for county officers was required by the act of 1892. Such number, although larger than required in the other States of the Union, and larger than deemed reasonable by many persons, cannot be said by us to be prohibitory as a matter of law. The petitioners have practically assented to such number as not being unreasonable and prohibitory by asking in their petition “ that the board of election be directed to print upon the ballot for the general election to beheld November 5, 1912, ‘in the party ticket or column of the National Progressive Party the name of any candidate for a county office or for the Assembly who shall he nominated by a petition signed by five hundred or more qualified voters of Putnam county. ’” We are of the opinion that the statutes existing prior to the amendments of 1911 should in turn be declared unconstitutional and void so far as they require more than five hundred signatures to a certificate of nomination for county officers or for a member of assembly. * * * The order of the Appellate Division modified so as to direct that mandamus issue to the board of elections, commanding it to receive certificates of nomination for public office other than municipal offices, to be voted for in a district less than the whole State, but greater than a town or ward of a city, and also for candidates for member of assembly, when signed by five hundred voters qualified as prescribed by statute.; in other respects the order is affirmed, without costs to either party.”

Thus it will be seen that so far as the Court of Appeals is concerned it has decided that 500 persons are sufficient to nominate a member of Assembly and a county officer. It has not decided, or attempted to decide, that 1,500 is an unreasonable number to require for the nomination of a justice of the Supreme Court. This court will take judicial notice that there are upwards of 125,000 voters in the third judicial district. If it should be decided that 1,500 is" an unreasonable number — the Election Law of 1896 required 1,000 signatures for an independent nomination in a district of this kind; the Election Law of 1899, 1,000; the Election Law of 1901, 1,000, and the Consolidated Laws of 1909, 1,000 persons — we have to go back to 1892 to find that 500 persons is a sufficient number to make an independent nomination in a district less than the whole State, but greater than a town or the ward of a city — twenty years back. (See Gen. Laws, chap. 6 [Laws of 1892, chap. 680], § 54, as amd. by Laws of 1895, chap. 810; Gen. Laws, chap. 6 [Laws of 1896, chap. 909], § 54, as amd. by Laws of 1899, chap. 363, and Laws of 1901, chap. 654; Consol. Laws. chap. 14 [Laws of 1909, chap. 22], '§ 122.) I think that, so far as the statute of 1911 is concerned, the number required, 1,500, is not an unreasonable number in any judicial district in this State to place in independent nomination a candidate for justice of the Supreme Court. In order to save this nomination and make these petitioners sufficient numerically this court would have to declare unconstitutional and void five Election Laws of this State which have been acted upon without successful attack in our courts for sixteen years. This I am not prepared to do. There is no waiver or consent before us that any person except those represented by Mr. Chadboume has consented that 900 signatures were a sufficient number to this petition.

I also concur with Presiding Justice Smith that the burden of proof is on whoever asserts that the 900 persons who signed this petition are members of the National Progressive party when they are openly and unanimously repudiated by the regularly constituted authorities of that party, and that in the absence of any proof that such signers are members of that party the action and wishes of the respective committees of that party should prevail. (Matter of Quimby., 116 App. Div. 142; Matter of Folks, 134 id. 376; affd. sub nom. Matter of Bates, 196 N. Y. 540.)

I think that the order appealed from should be reversed and the application of the appellants granted.

Order affirmed, without costs..  