In re Halpin

There is no controversy over the facts. The appeal presents only questions of law. The Special Term was express!}' authorized by statute to review summarily the decision of the board of elections “and to malee such order in the premises as justice may require” (Election Law, Laws 1896, p. 922, c. 909, § 56) ; and the order of the Special Term is appealable (Matter of Emmet, 150 N. Y. 538 , 44 N. E. 1102 ; Matter of Mitchell, 81 Hun, 401 , 30 N. Y. Supp. 962 ; Matter of Cuddebach, 3 App. Div. 103 , 39 N. Y. Supp. 388 ). By virtue of the provisions of section 58 of the election law, certificates of nominations for county offices in the county of New York must be filed with the board of elections. Section 59 of the election law prescribes the time, specifying a maximum and minimum period before election within which certificates of both party and independent nominations “shall be” filed. With respect to party, as distinguished -from independent, nominations for county offices in the county of New York, it provides that the certificates “shall be filed within the following periods before the election for which the nominations are made.” Then follows a provision that those required to be filed with the board of elections shall be filed “at least twenty-five and not more than thirty-five days.” The last action of the Republican county convention was taken 14 days after the original nomination, and within 11 days of the election, and the certificate was tendered for filing within 8 days thereof.

Section 64 of the election law prescribes the manner in which a nominee may decline a nomination. As to the office in question, it provides that the name of a party nominee shall not be printed on the official ballot if he notifies the board of elections within “at least twenty days” before election, in writing signed by him and duly acknowledged, that he declines the nomination. Section 66 provides among other things, that a vacancy in nominations caused by declination or by death, or where the nominee is found to be disqualified to hold the office, may be filled by a committee appointed as prescribed in sections 56 and

As has been seen, Mr. Flammer, the first nominee of the Republican county convention for the year 1905 for the office of district attorney, did not within the time prescribed therefor by section 64 of the election law, and has not since, so far as shown by the record before us, declined the nomination in the manner or form prescribed by the statute. Therefore the question as to whether the provisions of the statute limiting the time within which party nominations for office may be declined and new nominations made to fill the vacancy are directory or mandatory is not squarely presented for decision. We are unanimously of. opinion that the most favorable view of the case for the petitioner that could be taken on the facts is to regard the last action of the Republican county convention in nominating Mr. Jerome as an original nomination, and the proceedings of the convention appear to have been shaped with a view to laying a basis for that contention. Viewed in that light, it is as if the convention had not been called or had failed to meet and make a nomination in time to permit the filing of the necessary certificate within the time prescribed by the statute. This presents the question as to whether the statute prescribing the time within which certificates of party nominations are required to be filed are mandatory or only directory.

A decision of a court of co-ordinate jurisdiction (Matter of Cuddebach, 3 App. Div. 103 , 39 N. Y. Supp. 388 ), precisely in point, directly involving a construction of the provisions of the former election law not distinguishable from those now under consideration and with respect to the time within which a party nomination certificate must be filed, and holding that the statute is mandatory and that the nomination was not filed in time, is relied upon in opposition to the motion. That case was decided by unanimous vote of the five members of the Fourth Department of this court nearly 10 years ago. During this long period its authority has never been questioned. We have no power to overrule it; but we are asked to disapprove and decline to follow it. The trend of judicial construction of similar statutes in other jurisdictions is in the same direction. The Legislature has frequently amended the election law, and the very sections in question since that decision was announced and presumably known and understood by most, if not all, the members of both houses. It is fair to assume that, if the construction placed upon those similar provisions of law was not in accordance with the wishes of the people and the will of the Legislature, some change in

It seems clear to us that such a construction would thwart the plain will of the people as manifested by their representatives in the provisions of the election law, definitely limiting the period within which party nominations may be made to a specified number of days before election, longer or shorter according to the nature of the office or the extent of the political division of the state in which it is to be filled, and expressly prescribing a still shorter period in every case, with the exception of town officers in the county of Erie, for independent nominations. Section 59, Election Law. As pointed out in Matter of Cuddebach, supra, the legislative intent is that the electors shall have a reasonable opportunity, after regular party nominations are made 'and announced, to ascertain the qualifications and fitness of the candidates presented for their suffrages by the respective parties, to enable them, if they so determine, to place opposition candidates in the field by independent nominations. That this will of the people would be frustrated if party nominations should not be made until the time for publishing the list of all nominees, independent as well as party nominations, is clear. The uncertainty as to what party nominations would be made might result in many independent nominations that would not be made if party nominations were timely announced as prescribed in the statute. All the disastrous consequences of such a judicial ruling may not be foreseen; but it is evident that confusion and litigation would ensue that would not only complicate the voting, but might endanger the validity of elections. We have endeavored to show that it cannot be regarded as a statutory declination of a nomination and the filling of such a vacancy, and that, considered as an original nomination, the certificate was filed too late.

The learned counsel for the petitioner very properly declined to rest his case upon any specific ground. One theory remains to be 1 considered, which is the claimed emergency in which the party finds itself placed by its nominee manifesting a disinclination to remain a candidate after having been regularlv nominated and having accepted and entered upon his canvass, and after the time for him to decline under the statute and for the vacancy to be filled or to make an original •nomination had passed. As we understand the argument of the learned counsel for the petitioner, he contends that these facts present a situation neither contemplated nor provided for by the statute, and therefore ' constitute a casus omissus, and justify the court in making and prom-1 ulgating an appropriate rule of law to fit the case and carry the legisla

“When no nomination shall have been originally made by a political party, or by an independent body for an office, or where a vacancy shall exist, it shall not be lawful for any committee of such party or independent body authorized to make nominations, or to fill vacancies, to nominate or substitute the name of a candidate of another party or independent body for such office; , it being the intention of this act that when a candidate of one party is nominated and placed on the ticket of another party or independent body, such nomination must be made at the time and in the manner provided for making original nominations by such party or independent body.”

If we should decide that a convention may be assembled after the ■expiration of the statutory period, and, on the request or with the consent of a nominee, make a new nomination, we would likely soon be ■confronted with claims that the convention, without- such request or ■consent, could reassemble at any time before election and reconsider its action for any reason satisfactory to itself. In either case, the door would be open to bribery and fraud. Candidates might be improperly influenced to request or consent to have their nominations revoked, and conventions might be hastily and on short notice reassembled, without actual notice to many of the delegates or when it would be im-'. possible for them to appear, and improper influences might be secretly exerted to prevail on those who were expected to appear to reconsider their action and favor another who could not have been nominated at the time the convention originally assembled, and a nomination then made when it would be too late for electprs not favorably disposed toward the nominee to make an independent nomination. The original ■convention, as authorized by statute, appointed a committee to fill vacancies in nominations. In the obscure state of the statutory law with respect to the powers of a nominating convention, after appointing

It follows, therefore, that the order should be affirmed.