Judges: Sears
Filed Date: 9/15/1917
Status: Precedential
Modified Date: 11/10/2024
This is a proceeding brought under the provisions of the Election Law to determine the rights of Frank J. Moyer, Jr., the respondent, to a position on the ballot in the Republican primary election appointed to be held on the nineteenth of September of this year.
A petition signed by a number of Republicans of the first assembly district of Niagara county has ■ been duly filed with the board of elections of that county, designating Moyer for nomination for the office of member of assembly. Other citizens of the same assembly district have designated William Bewley, the petitioner here, for nomination for the same office. The committee to fill a vacancy named on the Moyer petition met within the time limited by the statute and upon the theory that Moyer is ineligible to hold the office of member of assembly has designated Bewley as a candidate for the party nomination, in place of Moyer. The reason for the committee’s determination that Moyer is ineligible is because Moyer, until very recently, has been “ park and shade tree commissioner ” of the city of Loekport and also “ special; superintendent of Lock improved street ” of the city of Loekport, and it was thought by the committee and is contended by counsel for the petitioner here that Moyer is ineligible to the legislature by reason of th.e provisions of section 8 of article III of the Constitution of the state of New York, the first sentence of which reads as follows: “No person shall be eligible to the Legislature, who at the time of his election, is, or within one hundred days previous thereto has been-,
Section 52 of the Election Law provides in its first sentence as follows: “ If a candidate regularly designated for election to party position, or for a party nomination for public office, declines a designation or dies before the primary day, or is found to be disqualified to hold the office or position for which he has been designated, a committee to fill vacancies * * * which may be appointed by the signers and shown upon the face of the petition of designation, may make a new designation, to fill the vacancy so created, by. making and filing with the officer, * * * ” etc.
It is not necessary here to determine whether the finding in respect to disqualification is to be made, in the first instance, by the committee, or by the board of elections, for certainly, unless in the case of a candidate for legislative office the question is reserved exclusively for the particular house of the legislature to which he may be elected, this court has the right under the provisions of the Election Law to make the final determination. It is necessary, then, to consider, first, whether the court has power to determine whether a candidate for the office of member of assembly is ineligible for election to that body, and, second, whether, if it has such power, Moyer is in this instance ineligible.
The attention of the court is called to the tenth section of article III of the Constitution of the state of New York, in which the following sentence occurs: "Each house shall determine the rules of its own
Believing, then, that the court has power to consider the question of the eligibility of the designated person, it becomes necessary to determine whether Moyer did, within 100 days previous to the coming election day, hold an office under any city government. From Moyer’s affidavit it appears that he filed his resignation as park and shade tree commissioner in
Section 9 of article III of the Constitution of the state of New York provides as follows: “ The elections of senators and members of assembly, pursuant to the provisions of this Constitution, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the Legislature. ”
The argument based upon the fact that the legislature might change the date of the election and hence that it is not possible now to determine the exact beginning of the one hundred days previous ,tó the election is not sound. . Upon such theory no question of eligibility could ever be passed upon in advance, for the statutory provision in respect to eligibility might always be changed by further enactment thereafter. We must assume, therefore, in determining the eligibility of Moyer, that the election will take place on the sixth day of November and that the hundredth day previous thereto was Sunday, the 29th of July, 1917. On his own showing it was on. the 30th day of July, 1917, that Moyer resigned as park and shade tree commissioner of Lockport which is admitted by his counsel to be a city office. He was then clearly an officer under the city government of Lockport on the 29th day of July, 1917, which is within 100 days previous to the coming election day, and his resignation wás too late, unless the fact that the twenty-ninth day of July was Sunday in some way extended his time to file- his resignation. This cannot be the fact, for the provision of the Constitution contained in the 8th section, article' III, quoted above, simply names the 100 days, not as a period within which ah act .is' to be done, but as a period during which the candidate must not have a specified official status. Section 20 of the General Construction Law is entirely inapplicable,
It is not necessary for the court to pass upon the question whether “ the special superintendency of Lock improved street ” was- a city office,'inasmuch as Moyer was a city officer within the disqualifying period as park and shade tree commissioner.
The board of elections, therefore, must recognize the substitute petition designating Bewley.
Ordered accordingly.