
    The People ex rel. Thomas F. Woods, Relator, v. Patrick H. Flynn, Defendant.
    (Supreme Court,
    Cayuga Trial Term, June, 1913.)
    Election Law, § 194 — board of supervisors passing upon the name of a qualified elector to he appointed commissioner of elections — action to oust defendant from office of commissioner of elections — action of hoard of supervisors illegal.
    The board of supervisors of Cayuga comity, in passing upon the name of a qualified elector recommended by the chairman of the Democratic committee of said county as a fit and proper person to be appointed a commissioner of elections, acts judidally, and may either approve or reject the name as it may be advised, but its power of appointment is limited to names presented by the chairmen of the committees of the dominant political parties in said county.
    The political organization, however, does not waive its statutory right to submit any name by resubmitting the name rejected, and the appointment of one whose name was never submitted, or recommended, by the chairman of the county committee of the party with which he was affiliated is unauthorized and illegal.
    Where, in an action to oust defendant from the office of commissioner of elections of Cayuga county, it appears that after the board of supervisors had received the certificate of the chairman of the Democratic county committee that relator was a qualified elector and a fit and proper person to. be appointed a commissioner of elections he was duly appointed to such office for a term ending January 1, 1913, that he duly qualified and entered on the discharge of his duties and continued to act as such commissioner for the full term, that shortly before the expiration thereof and within the time limit of section 194 of the Election Law he was again duly certified and recommended for appointment as commissioner of elections representing 'the Democratic party for the term beginning January 1, 1913, but the board of supervisors rejected his name and upon it being resubmitted to them again rejected it, the action of the board of supervisors in the appointment of defendant to said office was illegal and plaintiff is entitled to judgment.
    That while for the purpose of the appointment of a successor relator not having received the necessary vote to make his recommended appointment effectual under section 17 of the County Law, his office as commissioner of elections would be deemed vacant after the expiration of the term for which he had been duly appointed, still, until his successor was appointed and had qualified, relator would hold over and be entitled to discharge the duties of the office and receive its emoluments.
    Action to oust defendant from the office of commissioner of elections of Cayuga county.
    Bichard O. S. Drummond, for relator.
    E. C. Aiken, for defendant.
   Claek, J.

On the 27th day of July, 1911, by a resolution duly adopted by the board of supervisors of Cayuga county, the relator, Thomas F. Woods, was duly appointed a commissioner of elections for Cayuga county for the term expiring on the first day of January, 1913. Said appointment was made after the board of supervisors had received a certificate duly executed by the chairman of the Democratic committee of said county, certifying that said Thomas F. Woods was a resident and qualified elector of Cayuga county, and a fit and proper person to be appointed as a commissioner of elections. After said appointment, said Thomas F. Woods duly qualified as such commissioner of elections, and entered upon the discharge of his duties, and continued to act as such commissioner up to and including the first day of January, 1913.

In December, 1912, and within the time required by section 194 of the Election Law, one James P. Doyle, who was chairman of the Democratic committee in and for Cayuga county, made, executed and caused to be filed with the board of supervisors of said county, a certificate substantially complying with the terms of said section 194 of the Election Law, certifying the name of the relator Thomas F. Woods as a fit and proper person to be appointed a commissioner of elections of said county, representing the Democratic party, for the term beginning on the first day of January, 1913, and recommending that he be appointed.

There is no question as to the fact that relator was a fit and proper person to be appointed to said office. On the 5,th day of December, 1913, at a meeting of the board of supervisors' action was taken on the matter and the relator’s name was rejected. It is his contention here that he was duly appointed, he having received a plurality of the votes cast. I cannot agree with that contention, for he did not receive the votes of a majority of the supervisors elected, and that was necessary to make his appointment effectual. County Law, § 17.

The chairman of the Democratic county committee was notified of the action of the board of supervisors, and was requested to recommend another name for appointment as election commissioner for Cayuga county and in compliance with that request the chairman of said county committee re-submitted the name of relator, and it was again rejected by the board of supervisors. The chairman of said county committee was again notified of the action of the board of supervisors and was requested to submit another name.; in pursuance of that request he re-submitted the name of relator, which was again rejected by the board of supervisors, and that body thereupon proceeded to appoint this defendant as a commissioner of elections for Cayuga county for the Democratic party.

Defendant was a member of the board of supervisors at the time of his appointment, has always been affiliated with the Democratic party, and is a fit and proper person to be appointed a commissioner of elections, but relator urges that defendant’s appointment was illegal because his name had not been submitted or recommended for appointment by the Democratic county committee, acting through its chairman, and the question is presented whether or not, in view of that fact the board of supervisors had the power to take the matter in its own hands and appoint a commissioner of elections representing the Democratic party who had never been recommended for such appointment by the chairman of the county committee.

I think it must be held that the action of the chairman of the county committee in submitting and recommending the name of relator for appointment as a commissioner of elections was in substantial complianee with the terms of section 194 of the Election Law and that in whatever he did in that regard he represented the committee as well as a majority of its members. He was its official head and presumably correctly represented the committee. If he did not he could be disciplined by the members of the body who had elected him.

Section 190 of the Election Law, as amended, provides : “ There shall be a board of elections in each of the other counties of the state, but in counties having a population of less than one hundred thousand inhabitants such boards shall consist of two persons. * * * Not more than two of such commissioners, if the'board of elections shall consist of four members, and not more than one of such commissioners if said board shall consist of two members, shall belong to the same political party or be of the same political opinion on state or national politics * *

It will thus be seen that the paramount idea of the legislature by the passage of this law was that these boards of election commissioners should be bi-partisan in their character, to the end that the dominant parties in this state should have equal representation on such boards, and that result would be achieved in this case whoever of the contestants should receive this appointment, for there is no question but that defendant and relator are each affiliated with the Democratic party, and have been for many years, and that each is a fit and proper person for the position.

In disposing of this matter of course the factional disturbances of the Democratic party in Cayuga county cannot be considered, the principal question here being whether or not defendant was legally appointed. The board of supervisors had a perfect right to reject the name of relator. That body was not a mere dummy whose sole duty in regard to the appointment of the commissioners of election was to register the will of the chairman of a political county committee. While it may be said that the board had no rig-ht to capriciously reject the name of a person recommended by the county committee, I do not think it acted in a ministerial capacity in passing upon the name recommended by the chairman of the county committee. It acted in a judicial capacity and had a right to approve or reject the name as it was advised.

But while all this is so, it does not follow that when the supervisors rejected the name recommended by the chairman, and the same name had been re-submitted and again rejected, that that gave them the right to go on and appoint another person who had never been recommended by the head of the organization representing the political party with which he was affiliated. The whole plan of selecting these commissioners of election is so simple that if all parties acted in entire good faith there would be no difficulty in having the paramount legislative idea of a bi-partisan board carried out. The idea was that in counties like Cayuga, where they have two commissioners of election, one should be selected from each of the two dominant parties, and the chairmen of the county committees of these parties should recommend the names; and how could the choice of such political parties for representation on such board be so well ascertained as in the manner prescribed by the Election Law itself 1 Election Law, § 194.

The time has not yet come when political organizations are to be entirely ignored. In Cayuga county the political organization of one of the dominant parties, acting within the provisions of the Election Law, recommended the relator for the appointment as its representative on the board of election commissioners. The supervisors rejected the name, as they had a right to do, and if that political organization chose to resubmit the same name, I do not think it could thereby be deemed to have waived its right to submit any name at all. It was not necessary for relator to prove why the chairman of the Democratic county committee submitted his name a second and third time, for it must be assumed that the chairman properly represented his organization, and the situation established by the evidence here would hardly justify the inference that the Democratic organization, acting through its chairman, either waived, or intended to waive, its statutory right to recommend a fit and proper person to be its representative on the board of election commissioners of Cayuga county.

It is of course unfortunate that the chairman of the county committee did not see fit to submit another name after the board of supervisors had refused to appoint the relator, but he was clearly within his rights in re-submitting relator’s name, and the board of supervisors was equally, within its rights in rejecting it, but beyond that I think it had no .right to go, for I think its power of appointment was limited to names submitted by the chairman of the committees of the dominant parties of Cayuga county, and defendant’s name never having been submitted or recommended by the chairman of the county committee of the party with which he was affiliated, his appointment was unauthorized and is illegal. Matter of Kane v. Gaynor, 144 App. Div. 206; 202 N. Y. 615.

It having been held that relator was illegally appointed, he having failed to receive the votes of a majority of the supervisors elected, and that defendant was not legally appointed because his name had never been recommended by the chairman of the Democratic county committee, the interesting question arises whether that party has at the present time any representation on the board.

There is no question but that relator was properly appointed for the term ending January 1, 1913, that he duly qualified and entered upon the discharge of his duties, and did discharge them up to that time. For the purpose of appointing his successor, his office would be deemed vacant after the expiration of his term, but, until his successor was appointed and had qualified, relator would undoubtedly hold over and be entitled to discharge the duties of.his office as such election commissioner and receive the emoluments thereof. 29 Cyc. 1399; People v. Kane, supra; Public Officers Law, § 5; People ex rel. Lovett v. Randall, 151 N. Y. 497.

Judgment is therefore directed in favor of plaintiffs, adjudging that the action of-the board of supervisors of Cayuga county in the appointment of the defendant as such commissioner of elections was without authority of law, and that the relator Thomas F. Woods is entitled to hold over in said office and to continue to discharge the duties thereof, and to receive all the benefits and emoluments pertaining thereto until his successor shall be legally appointed. Costs are allowed to plaintiffs.

Findings may be submitted and judgment entered accordingly.

Judgment accordingly.  