
    Matter of the Determination of the County Clerk of Clinton County.
    
    (Supreme Court — Clinton Special Term,
    October, 1897.)
    1. Election Law — Rival county conventions of the same factions — Regularity.
    Where it appears, from affidavits presented upon a contest relative to the validity of certificates of county nominations filed with a county clerk and naming, for the same county offices, rival candidates of hostile factions -of the same political party, that one faction caused a large number of armed policemen, specially appointed at its instance, to be present at the county convention; that one, not a delegate, secretly procured of the court an ex parte injunction order directed to the chairman of the county committee, the perstin by long usage entitled to call the convention to order; that this injunction was served upon him in the convention hall; that, while he was .examining it with a view to determining its effect (it, in fact, not precluding him from calling the convention to order), the person procuring the in-' junction called the convention to order against the protest of a majority of the delegates present and, before all were assembled, declared carried a motion to appoint a chairman of -his faction; that, when the regular chairman of the county committee called the convention to order a few minutes later, he was, without right, ordered, by the leaders of the rival faction, to be arrested by the special policemen, notwithstanding which he, with a majority of the duly elected delegates, proceeded, in the same convention hall, regularly to nominate a ticket for county officers, the nominations so made by the latter convention are to Be deemed legal, while the acts of the opposing action are to be condemned as irregular and unfair.
    
      2. Same — One delegate may cast the vote of all the delegates of his town.
    A party usage, under which one delegate from a town casts, in a county convention, the votes of all the other assenting delegates of the town, is not improper.
    3. Same — When a primary is unfairly conducted.
    A primary cannot be deemed a fair expression of the choice of the voters of a town, where it appears that it was held in a hall largely occupied by the adherents of one faction; that the hall would not hold more than one-half of the voters in attendance upon the primary and desiring to vote thereat; that the proceedings,' resulting in the choice of delegates to a county convention, were conducted and terminated in a period of from five to ten minutes, and that a ballot, demanded, was refused by the chairman of the primary, who had been elected in the interests of the faction which was in practical occupation of the hall. ' .
    Peoobbd'iiíg to review the determination of the county clerk aa to the filing of certificates of nomination.
    Royal Corbin, for county clerk.
    J. H. Booth (Marcus T. Hun, of counsel), for E. C. Baker.
    Wheeler & Woodward (Lewis E. Carr, of counsel), for G. H. Beckwith.
    
      
      Affirmed at extraordinary term o£ the Appellate Division, third department, October, 1897. No opinion —[Rep.
    
   Kellogg, J.

It appears, from the papers before me, that two-certificates of nomination to the office of member of assembly and office of coroner have been filed with the county clerk of the county of Olinton, each claiming regularity and to be the-true conclusion of the same convention.

Objections to each certificate were duly filed, and upon affi-' davits used before him the clerk has made a determination. Complaint is made by Mr. Baker, the person nominated for the assembly, as appears by the certificate of nomination declared by the clerk invalid, and the matter comes here for review, as provided by section 56 of the Election Law.

The evidence before me, which comes in the form of affidavits, is not the most-satisfactory character of evidence in matters where, the facts are disputed. I have given all the affidavits most careful and critical examination and find that much that is material is not disputed, and that at least may be accepted as the truth.

It is not disputed that David F. Dobie is the chairman of the county committee, and F. F. Hathaway is the secretary, and that these two, with Stephen Moffitt, are the members elected by the last convention as committeemen-at-large for the county.

It is not disputed that Dobie, as chairman, and Hathaway, as' secretary, were-authorized by the county committee and did call a county convention for October 5, 1897, at 2 o’clock p. m., to be held at the courthouse in the village of Plattsburgh, and for primaries to be held in each of the fourteen towns on September 28, 1897, at 2 o’clock p. m.

It is not disputed that primaries were duly called and held in conformity with such requirement, and none others were called and held in any town.

■It is undisputed that all of the fourteen towns were entitled to equal voice in such convention and the right to cast five votes each.

It is disclosed by the papers, and is undisputed, that at the time of holding the primaries and sometime prior thereto, there existed two factions in the Republican party, one known as the We ver faction and the other as the anti-Wever faction; that the Wever faction had a candidate for the assembly, Mr. Beckwith, and the anti-Wever faction a candidate for the same office, Mr. Baker; that in all the towns of the county, except the towns of Black Brook, Champlain, Clinton, Ellenburgh, Plattsburgh and Schuyler Falls, a vigorous canvass was made by each faction and the strife was continued at the primaries.

It is undisputed that in all these contested towns, except Beekmantown, the vote was taken by ballot and full opportunity was given, with abundant time for voters to make and cast their ballots; that the ballots were honestly counted and the delegates having the majority of votes were declared elected, and duly certified by the chairman and secretaries to the convention, in accordance with party usage.

It is disclosed by the papers, and not disputed, that the result of the primaries as so declared was as follows:

For the anti-Wever faction:
The town of Altona............................ 5 votes.
The town of Ausable......................... 5 votes.
The town of Champlain...................... 5 votes.
The town of Clinton......................... 5 votes.
The town of Ellenburgh...................... 5 votes.
The town of Mooers.............. 5 votes.
The town of Plattsburgh (Dobie)................ 1 vote.
31 votes.
For-the Wever faction:-
The town of Ohazy..........'................ 5 votes;
The town of Dannemora......................... 5 votes.
The town of Plattsburgh .!.......:............. 4 .votes.
- The town of Saranac.............-............ 5 votes.
The town - of Schuyler Falls.....'.............. .. 5 votes.
The town of Peru..................;......... 5 votes:
29 votes.

The foregoing statement of declared results of the primaries embraces all the towns in the county, except Black Brook and Beekmantown.

It is undisputed that no delegate from the town of Black Brook acted or voted with the Wever faction; nor were, their credentials presented in that faction or in the assembly by that faction organized, but one of the delegates from that town presented the credentials of -the entire delegation in the convention called to order by. Chairman Dobie, and voted the five votes of the town there, with the consent of the convention and without opposition on the part of the other delegates from Black Brook, and apparently in -accordance with the party usage.

The town of Beekmantown will be considered later on.

It is undisputed that after the primaries were held and before the day of the convention, one Benton Turner, a prominent leader in the Wever faction, publicly declared that they would carry the convention if they had to do it by force; ” that the day before the convention he procured to be appointed about fifty policemen, retainers, and had them armed with clubs, and on the day of the convention and before the hour of meeting, with these armed men took possession, to the exclusion of the sheriff, of the courthouse building in-which the-convention was appointed-to *be held. And on the appearance of Mr. Dobie, chairman of the county committee, for the purpose of calling the convention to order for organization, Turner, Wever and Lockwood, leaders of the Wever. forces, commanded the policemen to arrest him, and in obedience to such command a policeman came to Mr. Dobie, placed his hand upon him and declared that he arrested him. There does, not. appear to have been any occasion or reason for the presence of this armed body -of men beyond serving the purposes of the Wever faction. . . ■ ...

It appears by the papers, and is undisputed, that by the rules and unvarying usage of the party in Clinton county, the chairman of the county committee has the right and it is his duty to call and organize the county convention, to put to vote the motions for chairman of the convention and declare the result of such vote, and when present in the convention and willing to discharge that duty, no other person can be recognized as possessing that function. ■ -

■ It appears by the papers, and it is undisputed, that Mr. Dobie, the chairman of the county committee, was one of the first in the-convention-room, and was known to be-there by the delegates and by Wever and Mannix, and other leaders of the Wever faction; that while advancing to the platform for the purpose of. calling the convention, the leaders of the Wever faction caused to be served upon him an injunction order issued at their instance by a justice of this court, ex parte, and on the application of one Mannix and kept secret until that moment; that while Judge Dobie was examining the paper to discover its purport, and while he was in plain view of the delegates assembled,-and known to be there to exercise his rights to call and organize the convention, one Thomas E. Mannix, t'he person who procured the injunction order, though not a delegate to the convention, mounted the platform and declared that he called the convention to order, and declared that the motion carried that one Duffy was chairman. This seems, from the papers^ to have been done with great rapidity, before all the delegates had assembled, and while great confusion prevailed, and within one or two minutes after the service upon Dobie of the order he had procured and before Judge Dobie had had time to discover its contents.

It appears by the affidavits presented by the complainant that a majority of the regularly- elected delegates protested against this action of Mannix," and refused to recognize the proceedings so taken. It also appears, and is undisputed, that immediately and about the -time Duffy was taking his place on one end of the platform, Chairman Dobie "appeared upon the platform and proceeded at once to call the convention to order and entertain motions for-the election of a chairman, and that at this juncture the appointed policemen were commanded by Wever, Turner and Lockwood to arrest him and insistéd upon his arrest and removal from the room.

The scheme of removal seems to have failed, owing to a disappointing lack of hardihood' developed unexpectedly on the part of the armed contingent. .

Tip affidavits presented on the part of the Wever faction are. conspicuously silent on the subject of threats, appointment and purposes and use of this extraordinary armed force, and the us.e made of an'injunction order never intended by the justice who issued it, and we must conclude that the affidavits of complainant ' fairly disclose the facts and purposes touching, these. All these matters have a bearing upon the question of the regularity of the convention called to order by the chairman of the county com- ■ mittee.

There is no dispute but he did call the convention to order and the proceedings thereafter in 'that convention were conducted ■ regularly, decently and in order to its final close; it was held in the ■ room in which the delegates first assembled, and in another part ' of the same room the assemblage called together by Mannix proceeded at the same time to make nominations.

It is not disputed that in the convention called to order by ■ Chairman Dobie, all the regularly elected delegates hereinbefore mentioned, from the towns of Altona, Ausable, Champlain,. Clinton, Ellenburgh .and Mooers, and Delegate Dobie in Plattsburgh, numbering thirty-one, and the delegate from' the .town of Black Brook, as stated, took seats and voted and none of them vqted in the Mannix assemblage. It is also undisputed that this convention excluded none of the delegates regularly elected in other towns. It is also undisputed that Mr, Baker received the votes of all the delegates in this convention. It is plain that the Wever faction deemed it, as it in fact was, of the greatest importance to their success, that they should themselves call the convention to order and organize it with a chairman of their own selection; that to accomplish this they knew it was necessary to usurp the functions of the chairman of the county committee. They deemed it necessary to create a diversion and make an apparent excuse for such usurpation; The obtaining, ex parte, of the injunction order and keeping it secret until the moment arrived for organizing the convention, though it Was possible and convenient to have served it hours sooner, was evidently one of the means planned to the end sought. It was planned, to have Man-nix, the procurer of the order, suddenly seize the moment when the chairman’s attention was diverted in perusal of the order, to mount the platform and make the call, and create a, chairman, and when Chairman Dobie should discover that the order was harmless and should proceed to exercise his rights and call the convention, to have him arrested and removed from the room. This ■ was clearly the scheme, and substantially how it was operated has been stated, and now the authors and workers of this scheme seriously ask for judicial approval of their work.

The excuse was one of their own creating; was specious and did not excuse. The attempt by Mannix was the bold inexcusable usurpation of a stranger, he had no authority whatever under the usages of the party, hé was not even a delegate to the convention, if was an illegitimate proceeding and could not bear legitimate fruit.

Party usage, not inconsistent with good morals or the letter or spirit of statute law, is a law to the convention. In strict conformity to a well-known, long-standing and unvarying usage of the party, the chairman of the county committee called and organized the convention, and. since no subsequent act of this convention is called in question to discredit it, the nominations made by it must be accepted as the regular nominations of the Republican party.

The papers disclose other facts, but I do not see that they have any material bearing upon the question here involved. It appears that from the towns of Ausable, Altona and Mooers (the regularly elected delegates from which towns voted in the convention called by Chairman Dobie), came second -certificates representing the minority in the same primaries of such towns. These certificates were not signed by the officers of such primaries, but the delegates named in them were taken into the Mannix assemblage and presumably participated in the vote for Chairman Duffy. The papers do not disclose that these self-appointed delegates had any title whatever to recognition as delegates.

The undisputed facts, appearing by the affidavits relating to the town of Beekmantowri, seem to be that there was a very large gathering of voters at the primary held there — some five or six hundred voters; that partisan feeling was somewhat excited; that it was known to all that two tickets for delegates were in the field; that the room at which the primary was called would hold not to exceed 200 people; that it had but one door for entrance and no other exit; that before and at the hour of onening the primary, the room.- was well filled with voters of- the "Wever. faction; that the person who called the primary to order belonged tq that -faction, and the chairman elected, wholly by voters inside the room,; also belonged to the same faction; that, in some way the. clerk of. the primary was authorized by -those inside to.cast the vote for the delegates ..of the "Wever faction and then the chairman ..declared; the primary adjourned; that the whole proceeding was accomplished in-five or ten minutes; that a ballot was called for, but the :call was unheeded; that other names for" delegates-, were presented, but no vote was taken on these; that during these, proceedings; more than-one-half of the voters were outside of the room anxious: to-vote and .unable to do so, and wholly - ignorant of what was; going on and unable to find out. It is true the Wever faction present many affidavits alleging 'that everything was regular; that every -one had an opportunity to vote, but they do not attempt to; explain how-it was possible to get five or six: huhdred people into a room-which would hold not-to exceed 200, or how people on the outside could vote in the proceedings going on inside or have their, votes counted; Obviously the majority of the voters being outside might vote, on some proposition started on their: own -motion," but it is not at all likely that this swift-acting chairman would: have" regarded it. as regular; This feature of the affidavit, in the light, of the admitted facts, must be regarded as facetious. The. truth is obvious, a,majority of the voters did not vote and could not .-vote, owing to the. methods adopted by' the officers of' this; primary. - That this method was adopted to prevent á full and fair expression and to secure, delegates favoring the Wever faction. ■- :

It was pertinently said by Justice Herrick (in Matter of Broot, 6 Misc. Rep. 452): “ Party caucuses should be the fair', full and free expression. of -the party will and- such expression should not be’ thwarted By sharp practice- or throttled by force or fraud, and while it is not tó" be expected that political Caucuses will be conducted with the order and decorum’ of a church mééting Or a Sunday school, -still fair play "and good faith should prevail and & . substantial compliance 'with ’the party and state law - bé compelled.”

; r. It” was.- the duty of the chairman" at this primary to adopt sucti methods 'in': conducting" it as would-secure to every voter -his’ right to-Vote so-that there might be a “'fair," full and free expressibnof the-party-■.will.”-' The’-primary is the" only place in which the citizen can express Ms choice of rulers within Ms party, and the law recognizes it and takes the primary into its control.

The action taken in those five or ten minutes inside that room, wholly failed to discover or express the will of the majority of those entitled to vote and desiring to vote. • The conditions made it physically impossible by the methods adopted to discover such majority will, and in the language of Justice Herrick in the Broot case: “It would be a burlesque upon the Primary Election Law to recogmze persons so chosen or rather designated as regularly elected.” I

The five men so designated were admitted to ' the Mannix assemblage. ¡

Immediately after the chairman declared the primary adjourned, it appears that a new chairman was elected in the same room and a vote by ballot taken at the entrance to the room and all voters given a free and full opportumty to vote; five delegates were so elected wrho took their seats in the convention called by Chairman Dobie.

Summarizing the foregoing, it appears by the proofs, and I so find: That of the fourteen towns in the county, seven towns by their regularly elected delegates whose election is conceded, or concerting wMch there is no ground for dispute, were represented in the convention called to order and presided over by Chairman Dobie, and none of these towns were represented by any elected or accredited delegate in the Mannix assemblage; that such towns were Ausable, Altova, Black Brook, Champlain, Clinton, Ellen-burgh and Mooers, making...............■....... 35 votes

and in addition' One regularly elected and certified delegate from Plattsburgh (Dobie) .............. 1 vote

In addition thereto were the delegates from the town

of Beekmantown, elected by ballot, as stated...... 5 votes

41 votea

. Thus making forty-one votes, a full convention being composed of- seventy.

. I.find that in the Mannix assemblage, presided over by Duffy, there were of the delegates elected or entitled to take part in the Republican convention, twenty-nine (29) delegates and no more, and these were entitled to represent the following towns: Chazy, Dannéinora, Peru, Saranac, Schuyler Falls, -five each...... 25

Plattsburgh ...... .. . . -.............;............ 4

Total........................................ 29

I find the convention organized by Dobie, chairman of the county committee, and by him presided over as chairman of the convention, was the regular and only convention of the Republican party held in Clinton county on October 5, 1897, and that a majority of all the delegates duly elected in the fourteen towns of the county took part and voted in such convention. . ,

That the certificate of nomination upon which appears the name of Everett C. Baker, for member of assembly, Harrison Wood, for county clerk, James H. O’Neil and Henry P. Gilliland, for coroners, and which was filed with the clerk of the county, is the certificate entitled to credit and the only certificate; that the. names appearing therein are entitled to be printed upon the ballots to be used at the coming election as the nominees of the Republican party.  