People ex rel. McCarren v. Dooling

Gaynor, J. (concurring):

At the last state convention of the Democratic party, held in Tune of this year, contesting delegates -presented- themselves purporting to be accredited from- two organizations-in Kings county, respectively, each calling itself the Democratic party in Kings county. The convention admitted the delegates of one of them, and also passed a resolution that whereas there were two sections, groups or factions of the Democratic party in. Kings county, it organizes and recognizes ” that one .as the regular Democratic party in Kings county. Each of these organizations has now by .the chairman of the executive committee of its county committee certified to the Board of Elections of the City of New York a list of names of persons for appointment as inspectors of election by that board, as provided by section 12 of the Election Law. That section also provides that if more than one such list be submitted in the name or on behalf of the same political party, only that list can be accepted which is authenticated by the proper officer or officers of the faction or section of such party, which was organized as regular by the last preceding State convention of such party ”, *9The Election Law existed before the Primary Election Law, but unless it is not possible for factions to exist under the Primary Election Law, the provision quotéd in the foregoing was not shorn of application by the enactment of the Primary Election Law. If factions may arise notwithstanding the Primary Election Law, then the said provision still has force and application; and I think no one who considers the question can fail to see that factions may still arise. If, for instance, a party’s county committee should withdraw from the party by supporting the state candidates of the opposite party, it would no longer be regular but only factional at best, and the state convention, which concededly is the sole judge of the party faith and principles, could cast its delegates out, and recognize another faction in its stead; and that is what was done in the present case. Instead of leaving the Board of Elections to determine which faction is the regular one, or the most regular, or select one of them, in the case of lists for inspectors purporting to be certified to it by different organizations, the Election Law provides, as has been seen, that it shall follow the determination on that subject made by the last state convention. And the courts are without power to review or nullify such determination of the state convention. The first section of the Primary Election Law excludes its application from state conventions. If the Primary Election Law made the determination of the state convention re viewable by the courts,-then-they could inquire as to whether factions really existed, and if not, set at naught such determination. Concededly the courts had no such powér prior to the passage of the Primary Election Law, and it must be conceded they have it not now, unless the Primary Election Law confers it, and concededly it does not. By providing that the state convention may decide between contending factions, and organize and recognize one as regular, section 12 of the Election Law necessarily confers on the state convention power to decide what a faction is, and that factions exist. The courts have no power to define a faction, or construe the said Laws for the purpose of defining a faction, in order to decide that there were no factions before the state convention. That question is left now, as it always has been in this state, to the convention itself. . That the county committee of the faction or organization discarded by the state convention was regularly elected in 1907, makes no difference. The organization was outlawed, so to *10speak, by the determination of the state convention, as- a whole and in all of its parts.

. While these are my views, they are not shared by a majority of the court, and I yield my judgment to theirs ; the more willingly as I expressed the same views in the case of People v. Gleason (18 Misc. Rep. 511) several years ago, and mistrust that for that reason I may be unduly tenacious of them now.

Order reversed, with ten dollars costs and disbursements, not as matter of discretion but as matter of law, and motion granted, with costs. Leave to appeal to the Court of Appeals granted.