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Koenig v. Britt

Supreme Court of New York, Appellate Division

February 23, 1912

In the Matter of the Application of SAMUEL S. KOENIG, Respondent, for a Writ of Mandamus
J. GABRIEL BRITT and Others, Constituting the Board of Elections of the City of New York, Appellants.

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APPEAL by the defendants, J. Gabriel Britt and others, constituting the board of elections of the city of New York, from so much of 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 14th day of February, 1912, as provides that the ballot by said order directed to be printed shall not make provision for the separate printing and election of members of the judicial district committee, congressional district committee, senatorial district committee, assembly district committee, borough committee, aldermanic district committee or municipal court district committee. The order was made on the return of a writ of mandamus.


Terence Farley, for the appellant.

A. S. Gilbert, for the respondent.

James J. Foley, by permission of court, for the Democratic party of the county of New York.

Herbert R. Limburg, for the Independence League.


The Legislature in the exercise of a power which is not here questioned has conferred upon party organizations the right to determine the unit of representation from which the members of the county committee shall be selected, as well as the number of members in said committee. Acting under the power thus conferred the Republican organization in New York county has selected the Assembly district as its unit of representation and has also fixed the ratio for such representation, based on the votes cast for its candidate for Governor at the preceding State election. By failing to make any provision adverse to the general

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provisions of section 37 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as added by Laws of 1911, chap. 891) the members of the county committee elected by Assembly districts became ipso facto members of the judicial, senatorial, congressional, assembly, municipal court, aldermanic, city and borough district committees, and that such is the effect of the section in question is not disputed; but it is contended that the names of the members of the county committee should be repeated as often upon the ballot as there are separate committees to be filled and appear under the proper committee heading. For this method of election no good argument is advanced. Its sole result would be to incumber needlessly an already cumbersome ballot, for membership in the county committee automatically entitles the person thereupon to membership in all the other committees representing the district as a whole, no matter how numerous they may be. This being so, a single appearance of the names of the candidates for the county committee upon the ballot is sufficient, and when elected their membership in the other committees attaches without further action. The sole exception to this result is in a contingency which actually exists in some districts in New York county and for which in the order appealed from no provision has been made nor has the Legislature specifically provided therefor. This question cannot arise in the case of assembly, senatorial or judicial district committees in none of which is the Assembly district subdivided; but in the case of borough, congressional, municipal court and aldermanic districts there are Assembly districts which have been subdivided so that they are entitled to representation in two or more such committees. In these cases it would seem that neither the county committee nor the party organization can distribute or apportion the delegates between the various committees in which the Assembly district is entitled to representation.

Under the rule laid down in Matter of Murphy (126 A.D. 58) the right of electors to participate in the election of delegates to conventions was limited to election districts in which they are qualified voters. Any contrary rule was there stated to be opposed to the principles of our government and to the letter and spirit of the statute. Under the conditions it would

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seem, therefore, that the only case in which it is necessary to duplicate the names of the candidates for membership upon the county committee is where the Assembly district is subdivided in the method indicated, and in those cases it is the duty of the party organization to establish rules for the proper apportionment of membership in the borough, congressional, municipal court and aldermanic district committees between the various Assembly districts and parts of Assembly districts entitled to participation therein, and in the Assembly districts so subdivided the ballot will then contain the names of the candidates for membership upon the county committee and the names of such county committeemen repeated as often as there are other committeemen to be elected for smaller units than the entire Assembly district apportioned among the other committees in such numbers as the party rules may determine. Each subdivision of the Assembly district would then be entitled to vote in addition to the county committee for the entire Assembly district only for such other committeemen as reside therein and are named as delegates to that particular congressional or other committee which represents their section of the Assembly district. As to all the other Assembly districts the names of the county committeemen would appear but once. This would give a ballot which it seems to me would as closely as possible carry out the expressed views of the Legislature as carried into effect by the party organization in that it would be simplified by having but one list of names of committeemen for all Assembly districts which were not subdivided for the election of certain officers, and as to districts so subdivided would give a ballot containing the list of county committeemen with only such duplication of part thereof as would be necessary to apportion the representation in the various subdivisions for the purpose of electing other committeemen and would insure the election of such committeemen for the subdivided districts only by the electors entitled to vote therein and to be represented in such committees.

I believe, therefore, that the order appealed from should be modified so as to provide in the cases of congressional, borough, municipal court and aldermanic districts where part of an Assembly ...

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