People ex rel. Garvey v. Democratic General Committee

O’BRIEN, J.

(concurring). The purpose and intent of the pri-

mary law is to give representation to each assembly district in a general or county committee of each political party. Upon the organization of such committee it is competent for its members to determine just how the work of administration of the affairs of the body shall be divided, and through what committees and in what manner and form the party purposes shall be carried out. To that end it is competent for such general committee to' make and adopt resolutions and rules, and upon failure to do so then the primary law provides that the rules and regulations of the preceding general committee shall be controlling. There is no law or statute to which our attention has been called which gives to any assembly district, by the mere fact of election of members to the general body, the right to be represented upon any particular committee of that body; but, on the contrary, this subject of representation on particular committees is controlled and determined by the rules and regulations of the county or general committee. These rules and regulations, as stated, may be adopted by the members of the general committee; but, if not so adopted, are superimposed upon them by virtue of the law, which, in such a case, makes the rules and regulations of the preceding body controlling. The rights of the relator, therefore, are to be determined by considering what rules existed and applied to the general committee of which he was an elected member, and what, as to him and his associates, was their legal effect, and in what way -under them he and they have, if at all, been injured, and whether such injury can be redressed by a peremptory writ of mandamus.

It is conceded that the relator was duly • elected a member of the Democratic General Committee, and we may assume that, in accordance with the rights conferred upon the members elected to this general committee from the Ninth Assembly District {as provided in the rules and regulations that existed and applied to the preceding body), he and his associates from that district were prepared to suggest one {whose name is not given) as their choice for membership on the ■executive committee, which was one of the committees of the body. What may have been the scope and duties of such executive committee it is unnecessary for us to determine, it being sufficient to say that, whatever rights the members of the general committee elected from other districts had, the same rights were shared by the mem*791hers elected from the Ninth Assembly District with respect to the selection of one of their number for membership upon the executive committee, or upon any of the committees which, under the rules and regulations, were to be made up by each district selecting a member thereof.

We think, too, that the undisputed inference is that a notice of protest was served as against the Ninth Assembly District, and, while we do not regard such protest as in any way impairing the rights of the relator as a member of the general committee, still the resolution which was adopted in effect amended the rules and regulations as. they existed in 1502. The rules existing in 1902 provided in article 5 for an “executive committee to consist of one member from ■each assembly district”; and the resolution passed by the new body provided “that the districts be called in their order, and that one person from' each uncontested district * * * [be] named to constitute . the executive committee for 1903.” An explanation of this change or amendment is given in the affidavit of Mr. Grady, wherein it is stated that upon meeting for organization on the 30th day of December, 1902, it was found that the members of the general committee were dissatisfied with the old rule, and accordingly the resolution for calling all districts against which no protest was filed was moved and unanimously carried as an amendment to the rules. If the general committee had the power by this resolution to amend the rules and regulations, and if the resolution was, in effect, an amendment, and was duly passed, then the relator’s right to be allowed to name a member of the executive committee is not, as matter of law, free from doubt. If at that first meeting held on the 30th day of December, 1902, the general committee ■ had failed to make and adopt rules and regulations, then, under section 9, subd. 1, •of the primary election law (chapter 473, p. 991, Laws 1899), “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.” Whether, therefore, the old rules were expressly adopted or went into force by virtue of the section of the primary law referred to, it would follow that thereafter no repeal or amendment of any of the rules could be effected except upon giving “reasonable notice,” as required both by the primary law (page 993, § 9, subd. 2) and the rules themselves. This would undoubtedly prevent, at any subsequent meeting after the rules had once gone into effect, an amendment being passed without such previous' notice as would be equivalent to “reasonable” notice. What is reasonable notice is to "be determined by the existing circumstances, conditions, or facts. Thus, as already pointed out, where during the year, and after rules have once been adopted, it is deemed advisable to change or alter them, then a notice, to be reasonable, should be given some time prior to the meeting at which the amendment is offered, and particularly to those whose interests may be affected by such alteration or amendment.

We think, however, under the provisions of the primary law, that upon the first meeting of the general committee for organization it *792was competent for that body to then adopt a complete code of rules and regulations; and it would follow, if that power exists in such committee, it was equally competent to adopt, amend, or reject the rules which had governed the preceding general- committee. We-know that with respect to party conventions,' although it has been the almost invariable practice, among the first steps taken, to adopt the rules of the assembly as the rules for their government, there is nothing to prevent such conventions, on organizing, from adopting an entirely different set of rules. The adoption of assembly rules by such conventions is in no sense referred to, however, as constituting a parallel case, because with respect to the rules and regulations relating to a county or general committee we have the provisions of the primary law already mentioned, which require that, unless new rules are adopted, then the rules and regulations of the prior committee are binding. The very provision of the primary law cited says, as will be seen on reading it, that on the day -fixed the members of the county or general committee shall meet and -organize ; and continues:

“They may proceed to make and adopt rules and regulations, but unless so adopted, the rules or regulations adopted by" the last preceding county or general committee of said party * * * shall remain in full force and effect until repealed or amended in accordance with the provisions of this act.”

If the relator is right in his contention that upon that first meeting of the body for organization it was powerless to make and adopt rules and regulations unless some prior notice of the intended amendment should in some way have been given, this is equivalent to asserting that the body was powerless, upon meeting for the first time for organization, to adopt any rules and regulations, because up to that time it could give no notice to any one. It did not exist prior to that time as a body or committee, and it would, therefore, necessarily be forced nolens volens to be controlled by the rules and regulations which during the prior year had been adopted by the preceding county committee. We think it would be an unusual and strained construction to place upon this section of the primary law (section 9, subdiv. i) to hold that a committee, when it first meets for organization, though there is conferred upon it the express power to make and adopt rules and regulations, is prevented, nevertheless, from performing that very act because of another provision which requires that amendments shall only be made upon reasonable notice, and that “reasonable notice,” as here used, shall be the equivalent of notice given at some prior meeting.

Assuming that it was the desire of the entire committee to- adopt different rules and regulations than those which governed the preceding county committee, upon whom, and how, and by whose direction could notice prior to the first meeting be given ? Until the body or committee was brought together for organization, it is difficult to conceive, in the absence of any statute or law governing the subject (which is not claimed in this case to- exist), how or in what manner any one could give notice; and, as we understand it, notice prior to the meeting is what it is contended is “reasonable notice” of the intention to present a new set of rules and regulations, or an amendment -or repeal *793of the rules which governed the preceding county committee. In our view, these provisions as to reasonable notice being given must be held to apply to all attempts made to amend or repeal rules and regulations which have once been adopted, or which continue in force by failure to make new ones at the first meeting, and should not be construed to take away the right conferred by law upon the committee upon organizing to adopt new or old rules and regulations, with such amendments as may then seem advisable to all the members of the general committee present.

As, under the principle applying to peremptory writs of mandamus, we must take as true the allegations of the respondent, we are obliged to conclude as matter of fact that the resolution in question, which was in effect an amendment of article 5 of the old rules, which, upon the subject of selecting members of the executive committee, had governed the preceding general committee, was unanimously adopted at the first meeting called for the purpose of organization. Though it does not appear that there was any formal resolution adopting the rules and regulations which prevailed during the year 1902, it would follow, by force of the section of the primary law which we have already quoted, that such rules and regulations, except so far as modified or amended at that first meeting, became the controlling rules and regulations of the general committee during the year 1903. The resolution which amended the rules in the respect mentioned with reference to the composition of the executive committee having been within the right of the body to pass, as it here appears it was passed by unanimous consent, and by a committee or body of which the relator was a member, we fail to see why it was not binding and controlling upon him.

It is insisted that the resolution did not become effective because a certificate thereof was not, as directed by subdivision 2 of section 9 of the primary law, filed “with the proper custodian of primary records within three days after the organization” of the committee. It is unnecessary for us to determine, however, what may have been the effect of a failure to file such certificate after the resolution was unanimously passed, and, according to the relator’s version of what occurred, acted upon; because, even though it may be held that the failure to file the certificate within three days after the organization of the committee thereafter rendered the resolution nugatory, still, if we are right in our view that the committee at that first meeting had the power to pass upon the resolution or amendment, and at that meeting acted upon it, then clearly what was then done was valid and effective, no matter how much the force and validity of the resolution might subsequently be destroyed by failure to file the certificate.

I concur, therefore, with Mr. Justice INGRAHAM for a reversal.

McLAUGHLIN and LAUGHLIN, JJ., concur.