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In re Candidate of Democratic Party for State Committeeman

Supreme Court of New York, Appellate Division

March 19, 1912

In the Matter of the Designation of a Candidate of the Democratic Party for State Committeeman in the Thirty-third Senatorial District. JOHN B. TROMBLEY, Petitioner and Appellant.

COUNSEL

Thomas F. Conway, for the appellant.

Edgar T. Brackett, for the respondent.

OPINION

SMITH, P. J.:

By section 55 of the Election Law, as amended in 1912, party committees now existing are continued until their successors are

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elected, and are given power to make designations for the spring primaries in 1912. (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], ยง 55, as added by Laws of 1911, chap. 891, and amd. by Laws of 1912, chap. 4.) By the amendment of this year it was further therein provided that if there be no such committee for a district in and for which designations for candidates for public office and party positions for such primary may be made a committee designation may be made as shall have been provided by the State committee by resolution of which a certified copy shall be filed in the office of the Secretary of State. The State committeeman is elected from a senatorial district. Upon February 16, 1912, the Democratic State committee, assuming to act under section 55, as amended, provided that for the thirty-third senatorial district, for want of a senatorial committee, the State committeeman should be elected by a committee composed of three representatives selected by each of the county committees of the three counties composing said district. The three representatives were named by the several county committees and have designated John Anderson, Jr., as the State committeeman for the thirty-third senatorial district. This designation was filed in the office of the Secretary of State on the 5th day of March, 1912. Thereafter, upon the same day, a designation of John B. Trombley was filed in the office of the Secretary of State, purporting to have been made by Nathan T. Hewitt and A. Z. De Long, claiming to be two of three members of a senatorial committee regularly appointed at the senatorial convention held in 1910. With these two nominations filed, the Secretary of State gave notice to the effect that he would put upon the primary ballot the name of John Anderson, Jr., as the nomination having been first filed in his office. This proceeding is brought under section 56 of the Election Law (as added by Laws of 1911, chap. 891) to summarily review both the determination of the Secretary of State and the action of the committee appointed by the several county committees of the district pursuant to the assumed authority given them by the Democratic State committee.

The first question raised is as to the jurisdiction of a judge in the fourth judicial district to review a determination of

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the Secretary of State made, as it is claimed, in the third judicial district. The contention that the act of the Secretary of State may be reviewed in the fourth judicial district finds some support in Matter of Fairchild (151 N.Y. 359). If, however, the action of the Secretary of State be deemed to have occurred in the third judicial district and, hence, not reviewable in the fourth judicial district, nevertheless the determination of this committee, appointed pursuant to the direction of the State committee, was made in the fourth judicial district and should be there reviewed. The learned judge has put the denial of relief to the petitioner upon the ground that the writ to review the action of this committee is only given upon the assumption that it was a lawful committee and if a lawful committee the nomination made thereby was valid. To this proposition I cannot agree. It is not claimed here that if a senatorial committee existed the State committee was authorized to direct the nomination of a State committeeman from the thirty-third district to be made by any other committee. If we hold that the facts establish the existence of a senatorial committee in that district we must hold that the act of the committee appointed pursuant to a resolution of the State committee was void. It does not follow, however, that the committee did not exist under the appointment regularly made by the Democratic State committee authorized by law to make the same in case of the non-existence of a senatorial committee, which fact was determined by the State committee. The committee, therefore, which nominated John Anderson, Jr., was an existing committee whose acts could be summarily reviewed under section 56 of the Election Law, even though upon review of its acts the court should determine that the conditions did not exist which authorized its appointment. Its determination, therefore, that such condition did exist if such determination may be implied and in any event its determination as to the appointment of a State committeeman may in this proceeding by the Special Term in the fourth district be adjudged void and of no effect. The right of review given by section 56 is necessarily summary and the court should not unnecessarily circumscribe that right by a strict construction which would render it ineffectual. Within both the letter and the spirit of

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the act the remedy in the case at bar should be allowed to be pursued in the fourth district, where all the parties interested in the controversy reside, and all the transactions out of which the controversy arises have taken place.

These considerations bring us to the fundamental question as to whether there existed in this senatorial district a senatorial committee which under the law was authorized to make a nomination of a State committeeman to represent that district. This fact was not determined by the judge below. By rule 3 of the General Rules of Practice, as amended in 1910, we are authorized to look to the opinion of the court to find the ground upon which the order was made in the absence of a statement of such grounds in the order itself. It is conceded by the affidavits of both parties that a senatorial committee was in fact created. It is claimed on behalf of the respondent here that the power of that committee was limited to the filling of vacancies. Affidavits have been read on the part of the appellant to the effect that it was appointed generally. Newspaper accounts of the minutes of the convention given at the time of the convention would seem to indicate the appointment of a senatorial committee with general powers, including the power to call a convention. There seems to be no reason why after the appointment of such committee its powers should have been limited. The existence of such committee was important for the purpose of calling the next senatorial convention. The absence of any reason for limiting the powers of this committee, and the existence of reasons for giving it general powers, and the accounts of the convention given at the time would seem to corroborate the affidavits of the appellant, and lead to the conclusion that the committee was appointed with general powers as a senatorial committee, and as such has the power to name a State committeeman.

In determining this question of fact we are required to consider the determination of the Democratic State committee, but are not to be controlled thereby. It does not appear and is not even claimed on the argument that that determination was made after an investigation or with opportunity to the parties interested to present the facts. In the ...


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