
    Matter of the Application of Christopher Ward, for a Writ of Mandamus, Etc.
    (Supreme Court, New York Special Term,
    January, 1902.)
    Elections — Right of Social Democratic party to nominate by convention — Failure to hold primaries, when excused.
    The Primary Election Law (L. 1899, ch. 473) does not apply to the electoral proceedings of the Social Democratic party as it cast, in 1900, less than three per cent, of the entire vote in the State for Governor and has never elected to come in under that law, but as it then cast more than ten thousand votes in the State it has a right to nominate by a convention held according to the Election Law (L. 1896, ch. 909, art. Ill) and the candidate has a right to have his name printed on the official ballot.
    Where a political party has no voters in certain territory forming a part of a congressional district, it is not fatal to its right to nominate by convention for Congress that it neither advertised nor held primaries in that territory, as such primaries would have been futile, if not impossible.
    
      Application by Christopher Ward for a writ of mandamus, directing the Board of Elections to print his name on the official ballot as the candidate of the Social Democratic party for the office of Congressman from the Seventh Congressional district.
    Hillquit & Hillquit, for petitioner.
    George L. Rives, Corporation Counsel, for Board of Elections.
   Scott, J.

The petitioner asks for a writ of mandamus, directing the Board of Elections to print his name on the official ballot as the candidate of the Social Democratic party for the office of Congressman from the Seventh Congressional district. He was nominated at a convention held as prescribed in article IH of the Election Law. Chap. 909, Laws of 1896. His certificate of nomination was rejected by the Board of Elections of its own motion, upon the ground that it did not appear that his nomination had been made by a party convention or an authorized committee thereof, and that the same was not in accordance with the requirements of law, the specific objection appearing to be that no transcript of the rules and regulations, of the Social Democratic party were filed with the custodian of public records, and no certified copy of the records of the convention had been filed with such custodian. The Election Law does not require these rules, regulations and records to be filed, the requirement therefor being found in the Primary Election Law (L. 1899, ch. 473). The question, therefore, is whether as to the Social Democratic party, the sections of the Election Law relating to primaries, conventions and nominations have been repealed by the Primary Election'Law. The latter law prescribes very minutely and specifically how primaries and conventions shall be called and held, and how their results shall be certified. By its thirteenth section it is provided that no party which, at the last preceding election for Governor, cast less than three per centum of the entire vote in the State for Governor shall be subject to the provisions of the act, unless, on or before the first day of July in any year, such party shall elect to come in under the same. The Social Democratic party at the last election for Governor did cast less than three per centum of the entire vote cast in the State for Governor, and it has not elected to come in under the Primary Election Law. It is not, therefore, subject to the provisions of the act. The repealing clause of the- act is carefully guarded. It provides that “ All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, in so far as they apply to the parties and in the places to which this act is, or shall be applied.” That is to say that other acts remain unrepealed so far as they apply to parties’ to which the Primary Election Law does not apply. By section 13 it does not apply to the Social Democratic party, and, therefore, as to that party former acts are not repealed. The Election Law (§ 50 et seq.) contained provisions relating to primaries, conventions and nominations, and with these provisions the Social Democratic party has complied. By section 56 party nominations by convention or authorized committee could be made by a political party, which at the last preceding general election at which a Governor was elected, cast ten thousand votes in the State. It appears that the Social Democratic party, at the general election of the year 1900, at which a Governor was elected, cast upwards of ten thousand votes. It is, therefore, under the terms of the Election Law, a political party authorized to nominate candidates by convention, and under the guarded language of the repealing clause of the Primary Election Law these provisions of the Election Law remain unrepealed so far as concerns the Social Democratic party. The petitioner’s nomination having been properly made and certified, as prescribed by the Election Law, he is entitled to have his name printed upon the official ballot. That primaries were advertised and held only in the county of Richmond and in one of the Assembly districts, of the three, parts of which go to make up the congressional district is not, I think, fatal to the petitioner’s right. It appears that the Social Democratic party had no voters in the other two assembly districts, and in that case it would have been futile, if not impossible, to have held a primary election therein.

The application must be granted and the writ issued as prayed for.

Application granted and writ issued.  