The fundamental question in this case is whether a member of the general committee of a county may be removed from office as a member of the committee. The answer to it depends upon the construction now to be given to the Primary Election Law (Chapter 473 of the Laws of 1899, vol. II), section first of which, in declaring the application of the act, says: "It shall becontrolling; (1) on the methods of enrolling the voters * * *; (2) on primary elections * * *; (3) on party conventions * * *; (4) on the choice * * * of political committees and on theconduct of political committees in and for any political subdivision of the state * * *." *Page 338
It will help us intelligently to consider the statute if we call to mind preceding legislation intended to protect the rights of minorities; the statute law looking to the purity of the ballot, and the organic law having for its purpose the encouragement of independent action in matters relating to municipal government. The help will come from our possession of the situation in which the legislators were when, in 1899, they passed the statute in question, which was in part composed of the general drift of public opinion and the fault which that public opinion had found with the machinery for the election of public officials. The settled conviction that the safeguarding of our institutions requires the untrammeled exercise of the franchise by the citizens and that the result be protected from fraud, has led to no inconsiderable amount of legislation during the present generation — legislation aimed largely, although not entirely, at the frauds of majorities who, at times, have manifested a disposition to retain their power, let the cost be what it might. The frauds that have perhaps occasioned the greatest amount of discussion resulted from colonization and repeating, for the correction of which several registry acts were passed. At the outset the legislation on that subject proceeded on the view that only in great cities were such frauds practiced, but such view proved to be partial, and in 1890 a general registry law was passed applicable to all of the state except the cities of New York and Brooklyn. (Chapter 321 of the Laws of 1890.) In those cities registration had long been required. (Chapter 142 of the Laws of 1880.) An enlightened public sentiment was at the same time making war against the evils of bribery and the outcome was a new departure in our method of voting, under the provisions of an act entitled "An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of the ballot at public expense." (Chapter 262 of the Laws of 1890.) This act inaugurated the voting booth; prohibited electioneering within one hundred and fifty feet of the polling place; took the burden of printing and distributing ballots from the *Page 339 party organizations and placed it upon the public generally, and throughout teemed with provisions guarding against the frauds upon the ballot that experience had shown to be possible. Complaints had also been made that the practical effect of the power exercised by the organization was to render ineffective independent voting in purely municipal affairs, to the detriment of the best interests of the cities; and the recent constitutional convention (the work of which was subsequently ratified and adopted by the people) undertook to ameliorate the situation, to some extent, by providing that city officers should be elected at a different time than state officers, the election of the latter to take place in even, and the former in odd, numbered years, the reason assigned being that, unrestrained by national and state contests, the citizen would naturally be more independent, not only in voting, but in bringing about independent nominations whenever the party to which he belonged should attempt to make nominations intended to subserve the selfish purposes of the leaders rather than to promote the public interests.
Prior to 1882 there was no attempt to regulate by law the conduct of primaries, but chapter 154 of the laws of that year, known as the Chapin Act, declared certain acts committed at primaries crimes, such as the false personation of a voter, intentionally voting without right, prevention of others from voting, and fraudulent concealment or destruction of ballots. It also required that the presiding officers and inspectors at such an election should take the usual oath of inspectors at general elections, and provided for the challenge of voters and the administration of an oath to a person so challenged.
The act applied only to the city of Brooklyn, but in 1883 its operation was so extended as to include the entire state (Chapter 380 of the Laws of 1883), while four years later it was restricted to cities of ten thousand inhabitants or less. (Chapter 265 of the Laws of 1887.) The latter act, however, contained new provisions regulating the primary elections in all the cities of the state containing over ten thousand inhabitants. *Page 340 Among other things, it required the appointment of watchers, the examination of the ballot box before use, and that it should be so placed as to enable the voter and each watcher to see the ballot deposited, the keeping of a poll list of the voters, and the making and filing of returns in the county clerk's office. The qualifications a voter was required to possess under the Chapin Act (Section 2) and under the act of 1887 (Section 14), in addition to his being an elector, were those "prescribed by the regulations of the association holding the primary or convention."
While these provisions reduced to a considerable extent the wrongs which had been committed against the voter who desired to participate in the selection of the candidates of his party, and made snap caucuses impossible and the selection of delegates by brute force extremely difficult, still the right of the general committee to prescribe tests or qualifications for a voter was in some instances so employed as to exclude from participation in the primary many who were not in sympathy with the majority of the committee in all respects, and who might be termed members of a minority faction in the party. The not unnatural desire of the several general committees to perpetuate their power and control led, in some instances, to the making of "regulations" under which members who were not congenial to the majority were disciplined upon charges of disloyalty, inefficiency or mismanagement, and the places made vacant by their removal were oftentimes filled with men who, from choice or prudence, worked in harmony with the majority or the organization, for the latter term practically means the particular members of a party within a given territory who are, for the time being, in full control of its affairs.
In McKane v. Adams (123 N.Y. 609) it appeared that the plaintiff was formerly a member of the Democratic association of his town and a delegate upon the general committee of the county. Charges were preferred against the town association and the trial resulted in its being disbanded. A reorganization of the town association was undertaken and a primary election thereupon ordered by the general committee of the *Page 341 county organization, at which the defendant was elected a delegate to the county committee. The general committee refused to accept the returns of the primary election and to recognize him as a delegate. It was held that membership in such an association is a privilege which may be accorded or withheld. And such being the status of a delegate to the general committee, that body could refuse to recognize the choice of a given constituency until such time as they should conclude to elect a delegate agreeable to the wishes of the majority, thus rendering futile all attempts at independent, otherwise termed "hostile," action.
These and other abuses, as they were called by the minority members of party associations, became so common that a demand was made for a primary election law sufficiently comprehensive in scope to assure to all citizens equal rights in the primary elections, conventions and political committees of the party with which they were allied. This demand the legislature undertook to meet by chapter 179 of the Laws of 1898, which was amended (but not in respects affecting this question) by chapter 473 of the Laws of 1899. These acts recognize the equal importance of primary and general elections and model the conduct of the former upon the general lines of conduct of the latter. They provide for the enrollment of the voter, and the only exaction permitted precedent to his right to enroll is that he shall express an intention to support generally at the next general state or national election the nominees of such party for state or national offices. (Section 3, subdivision 1.) No inquiry as to the past political conduct is permitted or promise as to future support of local candidates required. They provide for booths at public expense, in which the primary voter must in secret prepare his ballot; for ballots and their printing and subsequent folding so that the inspectors shall not be able to know for whom the ballot is cast; for the administration of an oath to a voter in case of a challenge; for challengers and watchers; for an annual primary day, and that the polls shall be held open for a fixed period of time. The dominant idea pervading the entire *Page 342 statute is the absolute assurance to the citizen that his wish as to the conduct of the affairs of his party may be expressed through his ballot and thus given effect, whether it be in accord with the wishes of the leaders of his party or not, and that thus shall be put in effective operation, in the primaries, the underlying principle of democracy, which makes the will of an unfettered majority controlling. In other words, the scheme is to permit the voters to construct the organization from the bottom upwards, instead of permitting leaders to construct it from the top downwards.
Now, having in mind the purpose of this statute and the decision of this court in the McKane case — that membership in a county general committee is a privilege which may be accorded or withheld, not a right which can be gained independently and then enforced, inasmuch as the association is voluntary, being organized without a charter and regulated as to its action by a constitution and by-laws — let us further examine the statute and see whether the legislature intended to, and did, take away from the general committee the power, for any cause whatsoever, to expel members elected thereto by the voters of a town or ward.
In the first place, the voluntary character of the county general committee has been destroyed, for the statute expressly commands that "each party shall have a general committee for each county." There is but one way to gain membership, says the statute, and that is through the suffrages of the members of the party exercised "at the primary elections on the annual primary day" and at "public expense." (Section 4, subdivisions 2 and 3, and section 6.)
"The expense of official primary elections, including the expense of preparing new enrollment books and the compensation herein provided to be paid to primary election inspectors, shall be paid by the same officers or boards, and in the same manner, as the expenses of general elections." (Section 4, subdivision 2.)
"There shall be two polling places in each of such primary districts which shall be designated and provided at public *Page 343 expense by the officers or boards whose duty it is to provide polling places for days of general election, and which shall be, so far as they are available, the same places which were used for the last preceding general election." (Section 4, subdivision 3.)
"The polling places, voting booths, guard rails, distance markers, ballot boxes, sample ballots and other supplies required for official primary elections shall be provided and paid for by the same officers, and in the same manner, as in the case of general elections, pursuant to sections 10 and 18 of the Election Law." (Section 6.)
The term of "office" of a member of the general committee, for such the statute declares it to be, is for a period of one year, but is to commence at a time fixed by the rules and regulations of the party, except that it shall not be later than the first day of January succeeding their election. And the general committee is commanded to meet and organize "on the day fixed by the rules and regulations of the party." At that meeting a member elected at the preceding town or ward primary may appear to assume the duties of the office to which he has been elected, and the production of a certificate of election from the "custodian of primary records, or a duplicate thereof, shall be sufficient to entitle the person named therein to be admitted to the * * * committee to which he shall have been elected." Note, in passing, that there is no discretion vested in the committee, as the court said there was in the McKane case. The statute that calls the general committee into existence makes the certificate of the "custodian of primary records" proof of his election and right to exercise the duties of a member of the committee. And section 1 provides that "the act shall be controlling * * * on the choice * * * of the members of political committees and on the conduct of political committees in and for any political subdivision of the state." Does the recital of these provisions suggest that the legislature intended that the committee should be the judge of the election or other qualifications of its members, or that the primary voters should be the *Page 344 judge? What was the object of the legislation — to protect the majority of the committee from enforced association with a disagreeable or "hostile" member, or to protect the right of the voters to have their wishes in party matters presented by their chosen representatives?
If the former, then legislation was not needed in that direction, for the general committees had a method of ridding themselves of offensive members, that was in full operation, as the McKane case witnesseth. If the latter was the object of the legislature, it is difficult to conceive how it could have taken more effective measures for its certain accomplishment. It provided that the statute should control not only the choice but also the conduct of political committees. The choice of the member it vested absolutely in the voter at the primary, reserving no voice whatever in the matter to his associates in the committee. It provided many things for the conduct of the committee, but the right to expel a member was not one of them. Power was given to a committee to prevent a member who had failed to pay his annual dues "from participating in the meetings of such committee." Expulsion from, or forfeiture of, his office was not named as the penalty for non-payment of dues, but only exclusion from participation in the meetings. And it is apparent from a reading of the provisions that the words were chosen with a view of enabling the member to resume attendance of the meetings upon payment of dues. But if this provision were capable of being treated as authorizing expulsion for non-payment of dues, the maxim expressio unius est exclusio alterius would be applicable and call for a construction of the statute denying power to expel a member of the committee for any other reason.
But, to resume again the inquiry we were pursuing, whether it was possible for the legislature to have employed language more apt than it did to absolutely vest the power in the voters at the primary to select a representative in the general committee who should be responsible to them alone for the manner in which he should conduct himself, we observe, in addition to the provisions that the statute should control not only *Page 345 the choice, but the conduct, as well, of the committee, that the details of the plan by which the choice is to be made by the primary voter are fully carried out and every one of them support in some measure the absolute supremacy of the majority at the primary. The annual enrollment; the statutory qualification of the voter; the private booth; the secret ballot and all the expensive machinery of a general election to be paid for out of the public treasury — why was it all required if the legislature intended to permit the majority of the committee to deprive the primary voters of the right of choice on any ground whatsoever? But it did not so intend; and, in the light of the abuses that the legislature set out to remedy, upon any possible reading of this statute there seems no room whatever for the contention that the right of removal for any cause was continued in the statutory general committee that now takes the place of the voluntary committee of other days.
If I am right in the views expressed, no other question need be considered, for the statute manifests an intent not to allow the committee, on any pretext whatever, to remove the committeeman from office, and it is the duty of this court to give full force and effect to that legislative intent.
It has been suggested that it would be intolerable for the members of a general committee to associate with a member who is hostile to the ticket, and that it follows that the legislature must be presumed to have had such a situation in mind. I answer — without assenting for one moment that the legal conclusion follows from the proposition of fact standing alone — that it does not stand alone; that the legislature was confronted with what it regarded as an abuse of the rights of the citizens in party matters, which compelled it to decide which was the lesser of two evils, to compel association occasionally with a member who is hostile to some portion of the party candidates or a majority of the committee, or to permit the general committee to deprive the primary voters of the choice of a representative. It decided that the wrongs that *Page 346 had been and were being done to the primary voters exceeded that which could result from occasional association with a hostile member. In other words, it was determined that the majority of the primary voters were entitled to select any representative they might desire, who should be responsible to those electing him, and only to them, for his conduct in office. That determination should be given effect by the decision of this court agreeably to that well-understood canon of construction that commands the court in construing a statute to give effect to the intention of the legislature.
The suggestion that the provision of section 9, subdivision 1, requiring the general committee to meet and organize and authorizing the making of rules and regulations, but providing that unless rules be so adopted "the rules or regulations adopted by the last preceding county or general committee of said party in said county shall remain in full force and effect until repealed or amended in accordance with the provisions of this act," continues in force all the old rules and regulations, including those permitting the expulsion of members for the violation of rules, might furnish sufficient foundation for a controversy, notwithstanding the fact that such rules would be in open conflict with both the manifest purpose and clear reading of the statute, were it not that the opening provisions of subdivision 2 of the same section expressly so limit the effect of rules and regulations as that they shall not be inconsistent with the provisions of the statute. It reads as follows: "The rules and regulations of parties, and of the conventions and committees thereof, shall not be contrary to, or inconsistent with, the provisions of this act, or of any other law." If, therefore, the defendant were acting under the rules and regulations of its predecessor association (of which there is no hint in the record), so much thereof as provided for the trial and removal from office of a member of the committee has neither force nor effect, because contrary to and inconsistent with the provisions of this act.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs. *Page 347