
    In the Matter of the Application of Thomas H. Murphy, Respondent, to Review the Decision of the Board of Elections of the City of New York, in the Matter of the Application of J. Carroll Edwards to Correct the Statement Filed by the Chairman of the General Committee of the Democratic-Republican Party of the County of New York, in so Far as the Same Affects the Thirty-ninth Aldermanic District of the City of New York. The Board of Elections of the City of New York and J. Carroll Edwards, Appellants.
    First Department,
    May 15, 1908.
    Election Law — primary — qualification of voters — unit of representation.
    A statement, filed pursuant to subdivision 4 of section 4 of the Primary Election Law, providing that “where an assembly district shall contain more than one aldermanic district it shall elect delegates to each aldermanic district convention.” which shows that in one Assembly district consisting of three aldermanic districts the electors of the entire Assembly district were to participate in the election of all the delegates to the aldermanic conventions, does not conform to the statute.
    It violates article 2 of the rules and regulations of the Democratic party, for the county of New York, providing that each aldermanic district shall be deemed an Assembly district for the purpose of representation, and also section 53 of • the Election Law, providing that a voter at a primary election must be eligible to vote for the officers to be nominated at the general election.
    The practice of having all the Democratic electors in an Assembly district participate in the selection of delegates to a district convention to nominate officers to be voted for in only part of the Assembly district is wrong.
    Appeal by the Board of Elections of the City of New York and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 7th day of October, 1907, directing the said board of elections to publish the call for the Democratic primary election to be held on the 24th day of September, 1907, as required by the Primary Election Law, and in accordance with the statement certified and delivered to said board by the chairman of the general committee of the Democratic organization of New York county. (See Matter of Sheridan, 57 Mise. Rep. 42.)
    
      
      Terence Farley, for the appellant Board of Elections.
    
      Francis J. Kuerzi, for the appellant Edwards.
    
      Robert L. Luce, for the respondent.
   Laughlin, J.:

On the 3d day of September, 1907, the chairman of the general committee of the Democratic party organization for the county of New York delivered to the board of elections of the city of New York, pursuant to the requirements of subdivision 4 of section 4 of the Primary Election Law (Laws of 1898, chap. 179, as amd. by Laws of 1899, chap. 473), a statement of the committees, conventions and offices for which delegates to conventions and members of committees were to be elected at the primary election to be held on the 24th day of September, 1907. This statement shows, among other tilings, that under the rules and regulations adopted by the organization filing the statement for conducting the primary election, the unit of representation to be observed in the election of members of the county general committee and delegates to the several nominating conventions, should be the Assembly district “except that, if an assembly district shall contain apart of a municipal court district Or districts, it shall elect delegates to the municipal court convention or conventions, and, except that where an assembly district shall contain more than one aldermanic district, it shall elect delegates to each aldermanic district convention as herein specified.” It appears that the thirty-ninth, fortieth and forty-first aldermanic districts are wholly embraced in the thirty-fifth Assembly district. The statement so filed, under the heading “ Aldermanic District Conventions.— The number of delegates to be elected in each Assembly District to the Aldermanic District Conventions shall be as follows: ” shows that in the thirty-fifth Assembly district twenty-three delegates were to be elected for the thirty-ninth aldermanic district convention; twenty-eight delegates for the fortieth aldermanic district convention, and twelve delegates for the forty-first alder-manic district convention ; and that the Democratic electors of the entire Assembly district were to participate in the election of all of these delegates. On the 6th day of September, 1907, the chairman of the board of elections addressed a letter to the chairman of the genéral committee of the Democratic organization asserting the claim that the statement filed was incorrect, among other things, in that it appeared that some of the aldermanic conventions are made up of delegates from parts of Assembly districts, but that the statement does not specify the election districts in each Assembly district which are to be represented in the respective aldermanic conventions. The committee failed to file a corrected statement. On or about the 9tli day of September, 1907, the appellant Edwards filed with the board of elections objections in writing to said statement, duly verified. The objections showed that he was a duly qualified elector and duly enrolled as a Democrat in the first election district of the thirty-fifth Assembly district; that the Assembly district embraced said three aldermanic districts and that he resided in the thirty-ninth aldermanic district, which consisted of the first, second, twelfth, thirteenth, fourteenth, fifteenth, eighteenth, nineteenth, twenty-first and twenty-second election districts of said Assembly district; that in the statement filed the thirty-fifth Assembly district is made the unit of representation for the purpose of electing delegates to the aldermanic conventions, and that the statement contemplates and provides that all of the Democratic electors in the entire Assembly district shall participate in the election of the delegates to each of the three aldermanic district conventions, thereby enabling the Democratic electors in two'of the aldermanic districts to control the election of delegates to nominate an alderman for the other aldermanic districts; that the statement does not conform to the statute in that each aldermanic district is a unit of representation and a political subdivision of the State from which delegates to the aldermanic convention should be chosen, and in that enrolled* Democrats of the fortieth and forty-first aldermanic districts who constitute a majority of the enrolled Democrats of the thirty-fifth Assembly district have under and through it the nomination and election of delegates to the aldermanic convention in the thirtj'ninth aldermanic district and the control of the nomination for the alderman to be elected therein, although under the law they will not be permitted to vote for such nominee at the general election. Notice of a hearing on the objections was given by the board of elections to the general committee of the Democratic party for the county of New York for the 10th day of September, 1907. At the hearing the objector and the general committee of the Democratic party were represented by counsel. The affidavits of Thomas H. Murphy and others were thereafter filed in behalf of the general committee of the Democratic party, showing, among other things, that since 1901 when by statute the number of aldermanic districts was changed so that two or more districts or parts of districts fell within an Assembly district, it has been the universal custom for the electors of the entire Assembly district to vote a single blanket ballot containing the names of delegates to the several aldermanic district conventions, the whole or part of which aldermanic district was within the boundaries of the Assembly district, without their right to do so being questioned, and that this has been the practice of Democratic electors for more than twenty years. The objections were thereafter sustained and the chairman of the committee which filed the statement was duly notified of such rejection and requested to certify and file with the board a corrected statement. Thereupon the general committee of the Democratic party applied to the Special Term and an order was granted reversing the action of the board of elections and sustaining said objections, and directed said board to publish the call for the Democratic primary election in accordance with the statement as filed.

Subdivision 4 of section 4 of the Primary Election Law provides, among other things, as follows: “ At least twenty days before each official primary day, the chairman of the general committee of each party subject to the provisions of this act, shall certify and deliver to the custodian of primary records a statement of the conventions, committees and offices for which delegates, members or candidates, as the case may be, are to be elected thereat, and the number of delegates to conventions and members of committees to be elected in each unit of representation * * The section requires the custodian of primary records to give official notice of the primary election, specifying location of each polling place, and, among other things, the conventions to which they are to elect delegates. If the board of elections accepted said statement they would have been required to give notice that in every election district in the Assembly district delegates to all the alder-manic district conventions were to be voted for by the Democratic electors.

Section 53 of. the Election Law defines the qualifications of voters at primary elections as follows : “No person shall be entitled to vote at any primary unless he may be qualified to vote for the. officers to be nominated thereat on the day of election. They shall possess such other qualifications as shall be authorized by the regulations and usages of the political party or independent body holding the same.”

The Election Law was enacted in 1896 (Laws of 1896, chap. 909) and the Primary Election Law was not enacted until two years later ; but if the Legislature in enacting the Primary Election Law intended that it should be complete in itself, it is reasonable to presume that it would have repealed section 53 of the Election Law hereinbefore quoted, or would have in express terms re-enacted a provision defining the qualifications of voters at primary elections. Inasmuch as it did neither it must be assumed that it was intended to let section 53 of the Election Law remain in force.

Subdivision 3 of section 4 of the Primary Election Law provides, among other things, for the division, thirty days before a primary election, of every ward or Assembly district in the city into primary districts, each of which shall consist of two contiguous election districts, except that in case there is an odd number of election districts in such ward, Assembly district or village, the highest numbered election district shall be a primary district by itself.” This provision is not controlling on the- question now presented for decision and has no natural bearing thereon. If delegates to a ward convention are to be elected I do not understand that it is necessary to join 'an odd district of such ward to another election district in the Assembly district to constitute a primary district (Primary Election Law, § 4, subd. 3), and even if any are required to be so joined the ballots of the respective election districts are expressly required by law to be placed in separate boxes (Id. §§ 6, 7), even if they would not in all cases be distinguishable by having the election districts printed thereon. (Id. § 7, subd. 1.)

The statement filed by the Democratic organization is in conflict with article 2 of the rules and regulations of that organization relating to “Bepresentation” filed with the board of elections, which provides as follows: “ The unit of representation to be observed in the election of delegates to the County General Committee and to the several nominating conventions shall be the Assembly District and the Annexed District.

“ Where a portion of an Assembly District is within the political division for which the committee or convention is elected, such portion shall be deemed to be an Assembly District for the purpose of representation, and the rules and regulations applying to an Assembly District, shall in all things apply to such portion of an Assembly District.”

Subdivision 2 of section 9 of the Primary Election Law provides as follows : “ The rules and regulations of parties and of the conventions and committees thereof shall not be contrary to or inconsistent with the provisions of this act or of any other law, and shall not be amended except upon reasonable notice.” It does not appear that the rules as filed have been amended.

Section 10 of the Primary Election Law provides that “ The delegates to every party convention in and for any political subdivision, chosen in any city or village to which this act is applicable, shall be apportioned among the units of representation in such city or village as nearly as possible upon the basis of the number of votes cast therein for the party candidate for Governor at the last preceding general election, except that in any county which is not wholly included within the boundaries of a city of the first class, the general committee of the party may, by its rules and regulations, continue any existing system of representation in conventions.”

The practice of the Democratic party which, it is claimed, has existed for more than 100 years, of having all the Democratic electors in an Assembly district participate in the selection of delegates to a district convention to nominate officers to be voted for the ensuing election in only part of the Assembly district, is manifestly wrong. It is unnecessary to consider the statutory law as it existed prior to the adoption of section 53 of the Election Law herein quoted. The Legislature has prescribed as a test of the qualifications of a voter at a primary election that he shall be eligible to vote for the officers to be nominated at the convention to which delegates are to be elected. It is quite clear that this limits the right of electors to participate in the election of delegates to conventions representing the election districts in which they are qualified voters. The construction for which the learned counsel for the respondent contends, would, as stated in the objections filed with the board of elections, permit electors of the Assembly district not residing in the aldermanic district to control the nomination for the office of aider-man, although they could not vote for the nominee on election day. Such a construction is opposed to the principles of our government and is contrary to the letter and spirit of the statute. It would seem that article 2 of the rules and regulations of the Democratic party for the county of New York, filed with the board of elections, which does not appear to have been amended' in accordance with subdivision 2 of section 9 of the Primary Election Law herein quoted, conforms to the statute but that the statement filed for the primary election in 1907 does not. Article 2 of the rules and regulations of the Democratic party, as applied to the facts presented by the record, shows that each aldermanic district in the thirty-fifth Assembly district should be deemed an Assembly district for the purpose of representation, but the statement filed does not conform to this rule. The statement is erroneous in that it should have provided that the unit of representation for the aldermanic" conventions should be the aldermanic districts and that the Democratic electors in the respective aldermanic districts, the election districts comprising which should have been set forth, should elect the delegates to the respective aldermanic conventions. The notice for the election of delegates would then, in conformity therewith, call upon the electors of the, respective aldermanic districts to elect delegates to the respective aldermanic conventions. This construction of the law in nowise interferes with the management and control of the political affairs of the party, but secures to the electors thereof the rights conferred by the statute.

Although the primary election for which this statement was filed has been held, no objection in that regard is presented, but on the contrary we are asked to decide the question as one of public importance likely to frequently arise, and we do so for the guidance of the party and the board of elections in the future.

It follows that the order should he reversed and motion denied, but inasmuch as costs are not demanded, without costs.

Ingraham, Clarke, Houghton and Scott, JJ., concurred.

Order reversed and motion denied, without costs. 
      
       All of the sections of this statute cited in the opinion were amended by the act of 1899.— [Rep,
     
      
       See Greater New York charter (Laws of 1901, chap. 466), § 19, as amd. by Laws of 1907, chap. 763.— [Rep.
     