SUPPLEMENTAL

Annotations to Election Code,

1897.

SECTION 12. Election officers-appointment of. - The present election law has made the decisions in the cases of people ex rel. Van Wyck v. Wheeler, 18 Hun, 540; Matter of Mitchell, 81 Hun, 401, and like cases, obsolete. People v. Gleason, 18 Misc. 511. No local faction or organization is in or of a party, and thus entitled to representation in the election officers, unless it is recognized by, and is thus actually in and of the state party organization. Id. The persons, proposed to the appointing officer or board by the political party for appointment as election officers "may be examined as to their qualifications" by such appointing officer or board. Id. This has reference to the qualifications specified by the election law. Id. The appointing officer or board can not make other tests. Id. Election officers are specially exempted from the operation of the Civil Service law, § 8, ch. 357 of 1884. Id. Those found qualified under the election law must be appointed. Id. If they are found disqualified, others may be proposed in their stead by a supplemental list authenticated the same as the original lists. Id. These may be examined in like manner and qualified or rejected. Id. If no list is submitted by a political party entitled to such election officer, or, if the persons submitted be found disqualified, then such officers or board "shall proceed to select in such manner as may seem to him or them feasible from the members of the party or parties in default, or whose nominees have been found disqualified, and shall appoint suitable persons to act as election officers." Id. The appointees must be "from the members of the party" in default, or whose proposed appointees were so found disqualified. Id. The reference to party is all the time to state parties. Id. The state party is made up of local sections or segments, being local organizations, all connected with the state party organization. Id. Local organizations, not connected with the state organization, are not part of the state party. Id. Unity of political faith in state politics is not enough; actual unity in state party organization is essential. Id. Without the latter, a local organization, however numerous, is not of the party. Id. In case of rival organizations, the statute leaves no room for debate in respect of which is in, and which outside, the party. Id. "The faction or section of such party which was recognized as regular by the last preceding state convention of such party," or by the state committee, if no convention has been held within the year, is the one which the statute in so many words requires shall have half of the election officers. Id. Where a list of proposed election officers was authenticated and filed by the local organization recognized as regular by the last preceding state convention of the party, and the mayor examined and refused to appoint many of the men whose names appeared on said list and also on a supplemental list duly filed, but appointed in their stead persons who were not members of the party, this is an omission, refusal and neglect to perform a duty required by the election law, which constitutes a criminal offense under § 41j of the Penal Code, Cr.

SECTION 31. An order to show cause why the name of a person should not be stricken from a registry list need not be served upon any one except such person, though the order provides for service upon others. Matter or Griffiths, 16 Misc. 128.

SECTION 34. Qualification of voter. - An inmate of an institu. tion, not supported in whole or in part at public expense, who was not so supported, but who had gained a legal voting residence in the district prior to the taking effect of the constitution of 1894, is not deprived of his right to vote by the provisions of § 3, art. 2 of state Constitution. Matter of Griffiths, 16 Misc. 128.

SECTION 50. Chairman. - The action of a person, who is designated by the Republican County Committee of the city of New York to preside over an assembly district convention as temporary chairman, in refusing, upon a demand made, to call the roll of the certified members of the convention, upon a vote for the office of temporary chairman, and in putting the question to vote viva voce, is illegal. French v. Roosevelt, 18 Misc. 307. The roll is the only evidence of the true membership of the convention. Id. The neces sity for such preliminary roll in such cases is plain. Id. Without

it, the officer or person calling the convention to order and presiding over its action, in the selection of a temporary chairman, is absolutely without proper evidence before him of the right of those voting to take part in the proceedings of the convention. Id. The duly certified action of the inspectors of election and the right of the delegates, who are certified by them to their seats cannot be questioned in the proceedings for temporary organization. Id. It is the delegates themselves who are the judges of the election and qualification of the members, and the credentials, until they have been passed upon by them, are unassailable. Id. Where, upon a refusal to call the roll, another convention is held in the same hall upon a roll call, in which a majority of the legal delegates participate, the nominee of the latter convention will be deemed regular. Id.

SECTION 53. Primary. - Upon an application to compel an enrollment committee of a political association to place the applicant upon the rolls of the association, a denial in the opposing affidavitsupon information and belief, that the petitioner is attached to the principles of the party and supported its ticket at the last election, is worthless. Matter of Guess, 16 Misc. 306. Orly positive statements of fact are considered in mandamus proceedings. Id. Unspecific and undefinite statements and denials, or statements and denials upon information and belief, are of no value. Id.

Political primaries are now under the sanction and control of the law. Id.

Quare. Whether a condition in a resolution, adopted by a party, that no one should be enrolled or should vote at a primary who had not voted the party ticket at the last preceding election, is reasonable or lawful in view of the secrecy of voting required by law.. Id.

The question whether a person is entitled to be enrolled and to vote at the primaries, does not depend upon the discretion nor upon the decision of the enrolling committee, but upon the fact of whether he possesses the requirements. Id.

SECTION 56. Review. - The Election Law provides that, when a certificate of nomination has been filed by the clerk, the supreme court, or any justice thereof within the judicial district, or any county judge within the county, shall have summary jurisdiction to review the determination and make such order as justice may require. Matter of Emmet, 150 N. Y. 538, rev'g 9 A. D. 237. But the order must be made on or before the last day for filing certificates of nomination to fill vacancies. Id. This limitation in time does not apply to any order made by the appellate division on appeal. Id. The statute makes no provision for an appeal from the order of the judge. Id. The order mentioned in this section, which must be made within a specified time, is the original order made in the first instance by the special term or judge. Id. But, as the order is one made in a special proceeding and is not in terms or by implication made final, an appeal can be taken to the appellate division under the general provisions of the code. Id. The jurisdiction of the appellate division attaches when the appeal is made and con. tinues until the case is heard and decided. Id. 'The power to decide an appeal regularly made is not lost by lapse of time, but may be exercised even after the election. Id. The limitation as to time, mentioned in this section, applies to the court of original jurisdiction and not to another court that has power to review the order. Id. It may be true that the facts and circumstances appearing on the hearing may be such as to warrant the appellate court, in the exercise of a wise discretion, in declining to make a decision that can have no practical effect upon the parties or in the settlement of a question that affects the public. Id. But that is a question as to the determination, and not to the power of the court. Id.

The district and county referred to in this section of the clection law, within which a justice of the supreme court or a county judge can entertain jurisdiction of a proceeding under this section, to review the determination of the secretary of state upon a contested certifi cate of nomination, are those within which the complainants and res pondent reside and where the transaction, which was the subject of the determination, arose. Matter of Fairchild, 151 N. Y. 359, rev'g 9 A. D. 624. Where the proceeding is brought within the county or district in which the officer making the determination resides or his office is located, if different from that in which the complainant resides, and in which the district, for which the nomination is made, is located, the justice has no jurisdiction to hear and determine the matter, and errs in not dismissing it on motion. Id.

The state committee and state convention of a party are its regularly constituted authorites. Matter of Fairchild, 151 N. Y. 359, rev'g 9, A. D. 624. It is much more proper that questions which relate to the regularity of conventions, to the nomination of candidates, and the constitution of committees should be determined by the re