
    The People of the State of New York ex rel. Theodore Douglas Robinson and Others, Respondents, v. Thomas O’Connell, as Clerk of the Town of North Hempstead, Appellant, Impleaded with Monroe S. Wood, Individually and as Secretary of the Nassau County Republican Committee, Respondent.
    Second Department,
    February 14, 1913.
    Elections—“committee” defined — nominations by National Progressive party—unofficial primaries.
    The word “ committee,” as used in subdivision 4 of section 45 of the Election Law providing “that party nominations for town, ward and village purposes and for the office of school director shall be made in the manner prescribed by rules to be adopted by the party committee of the county wherein such town, village or school district is located,” need not necessarily be a committee elected at a primary election.
    
      Hence, where a county committee of the National Progressive party, having adopted rules pursuant to the above statute which provide in substance for unofficial primaries at which delegates are elected to conventions which nominate party candidates in the towns, nominates candidates pursuant to such rules, a writ of mandamus may issue to the clerk of the town of such county requiring him to receive and file the certificate of nomination of the candidates of said party.
    The provisions of subdivision 14 of section 3 of the Election Law defining the term “ committee ” apply only to parties which have participated in the party primaries or have had an opportunity to do so.
    Appeal by the defendant, Thomas O’Connell^ as clerk of the town of North Hempstead, 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 Nassau on the 17th day of January, 1913.
    
      George B. Stoddart, for the appellant.
    
      William M. Chadbourne [Francis E. Norris with him on the brief], for the petitioners, respondents.
   Rich, J.:

This appeal is from an order of the Special Term directing that a writ of mandamus issue to the appellant O’Connell, as the clerk of the town of North Hempstead, requiring him to receive and file the certificate of nomination of the candidates of the National Progressive party for town officers and the office of school director in said town, to be voted for at an election to be held on the first Tuesday after the first Monday in April next. The certificate of nomination was prepared in conformity to the rules of the Nassau county committee of said National Progressive party. The question presented upon this appeal relates to the method and procedure the members of that party shall adopt in nominating their candidates for town offices.

The party was organized in June, 1912, and participated in the November election of that year, its candidates for State offices receiving more than 350,000 votes. It is a party and not an independent organization (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], § 3, subd. 8, as renum. from § 2 and amd. by Laws of 1911, chap. 891), and the provisions' of the Election Law applicable to the nomination of candidates by an independent organization do not apply to its procedure for the nomination for town offices. The party has no enrolled members, and because of that fact no primaries have been held since its birth; it has no committees elected under the provisions of the Election Law.- It has a State committee, however, and an organization in the various counties of the State, with committees duly constituted in its various branches, which are recognized by the State committee, and it has a town committee in the town of North Hempstead. The relators are the chairman of the State committee, the chairman of the county, committee in the county of Nassau, and the chairman of the town committee in the town of North Hempstead.

But two methods of nomination are provided by the Election Law; one is by independent bodies, the other by parties. The latter nominate under the provisions of section 45 of the Election Law (as added by Laws of 1911, chap. 891), and subdivision 4 of that section is as follows: “All other ntiminations and elections by a political party, both for party nominations and party positions, shall be made at the primary election herein provided for except that party nominations for town, ward and village officers and for the office of school director shall be made in the manner prescribed by rules to be adopted by the party committee of the county wherein such town, village or school district is located, and of the city committee wherein such ward is located.” The Nassau county committee have adopted rules providing the procedure for selecting its candidates for town offices and the office of school director, which provide in substance for unofficial primaries at which delegates are elected to conventions which nominate party candidates in the towns. These rules furnish authority for making the . nominations; unless it is to be held that the word “ committee ” as used in said subdivision 4 must be a committee elected at a primary election. Such a construction would make it impossible for the National Progressive party to nominate candidates for town, ward and village offices, a construction which the Legislature never intended. It would render the statute unconstitutional (Matter of Hopper v. Britt, 203 N. Y. 144), a construction which it is the duty of the court to avoid, if it is possible to so construe its provisions as to carry out the general purpose of the act and the intention of the Legislature. (36 Cyc. 1110; People v. Long Island R. R. Co., 194 N. Y. 130; Knights Templars’ Indemnity Co. v. Jarman, 187 U. S. 197; Harriman v. Interstate Commerce Com., 211 id. 407; United States v. Jackson, 143 Fed. Rep. 783; United States v. Delaware & Hudson Co., 213 U. S. 366.)

I believe that subdivision 14 of section 3 of the Election Law (as renum. from. § 2 and amd. by Laws of 1911, chap. 891) applies only to parties which have participated in the party primaries, or have had an opportunity to do so; that it has no application to the facts presented by the record before us, and that the National Progressive party may lawfully nominate and choose its candidates for town offices and school director in the town of North Hempstead in the manner prescribed by its rules for Nassau county, and that it is the duty of the town clerk to receive and file the certificate of such nomination. It is likewise his duty to print an official ballot, and in the party ticket or column of the National Progressive party the names of the candidates so nominated.

The order must be affirmed, with ten dollars costs and disbursements.

Jenks, P. J., Hirschberg, Thomas and Carr, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.  