In re Callahan

• Decision Date: 22 November 1910
• Parties: In re CALLAHAN.
• Court: New York Court of Appeals Court of Appeals

200 N.Y. 59

93 N.E. 262

In re CALLAHAN.

Court of Appeals of New York.

Nov. 22, 1910.

Appeal from Supreme Court, Appellate Division, Second Department.

Application of Patrick E. Callahan to review the action of the Secretary of State. From an order of the Appellate Division (125 N. Y. Supp. 1114) affirming an order refusing to strike from the official ballot, the name of Garret J. Garretson as nominee of the Independence League party for justice of the Supreme Court, there was an appeal. Affirmed.

Haight, J., dissenting.

Edward M. Shepard and William N. Dykman, for appellant.

Robert Stewart and Eugene N. L. Young, for respondents.

CULLEN, C. J.

While I think the decision of the courts below could well be sustained on the ground of long acquiescence by the public and Legislature in the interpretation of section 136 of the election law (Consol. Laws, c. 17) declared by Mr. Justice Bischoff in Matter of Gillespie v. McDonough, 39 Misc. Rep. 147,79 N. Y. Supp. 182, and while I agree in the opinion of my Brother GRAY on that question, I wish to place my vote on a broader ground. In my opinion the provisions of section 136 forbidding a committee of any party or independent body authorized either to make nominations or to fill vacancies to nominate a candidate of another party or independent body for the same office are plainly invalid and unconstitutional. I shall not discuss the extent of the power of the Legislature to regulate elections other than to say that concededly the power must be so exercised as not to deny or impair the rights of the electors. I shall assume that the Legislature may prescribe in the sewer which lay below the city datum for office may be made. I will assume, also, that the Legislature might have refused to grant committees of parties or of independent bodies the power to make nominations at all, but have required all nominations to be made by conventions. The proposition which I assert is this: That if the Legislature does grant to any convention, committee or body the right to make nominations, it cannot limit the right of such convention, committee, or body to nominate as its candidate any person who is qualified for the office. The electors have the right to vote for whom they will for public office, and this right cannot be denied them by any legislation. People ex rel. Bradley v. Shaw, 133 N. Y. 493, 31 N. E. 512,16 L. R. A. 606;People ex rel. Boring v. President, etc., of Wappingers Falls, 144 N. Y. 616, 39 N. E. 641. Equally, any body of the electors has the right to choose whom it will for its candidate for office, and to appeal to the whole electorate for votes in his behalf. If the Legislature has the constitutional power to prevent a committee of a party from nominating as its own candidate a candidate already in nomination by another party or body, it may equally, if it sees fit, forbid a convention from making such a nomination. It is true that the Legislature may prescribe qualifications for office where there is no constitutional provision on the subject, but it has been settled law from the earliest period in the history of our state that it cannot enact arbitrary exclusions from office. Barker v. People, 3 Cow. 686, 15 Am. Dec. 322;Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15,34 L. R. A. 408;People ex. rel. Devery v. Coler, 173 N. Y. 103, 65 N. E. 956. If it cannot enact arbitrary exclusions from office, equally it cannot enact arbitrary exclusions from candidacy for office. What exclusion could be more arbitrary than that one party or organization should not be permitted to nominate the candidate of another. For years the great popular outcry has been against the domination of partisanship in the election of administrative and judicial officers. To some extent the voters have felt the effect of the popular demand, especially this has been the case in this state in reference to the judiciary. For the past nine years every member of this court has been elected on the common nomination of the two great political parties. The same was the case with the election this year, but under the construction of the statute contended for by the appellant, assuming its validity, the candidate of the party which made the latest nomination was not entitled to a place on the ticket of the other party because that party had first held its convention and intrusted the nomination to one of the vacancies to a committee in the hope that there might be presented to the electors two common nominees worthy of the support of all the people and thus avoid division on partisan lines. Personally, I should think it a subject for public congratulation that a nominating as their candidate for the office of he sought as to command the support of other political bodies. But I do not base my argument at all on the claim that the legislation operates against nonpartisanship; that may seem to me an objection, but to others not an objection. I insist that the Legislature has not the right to legislate so as to induce either partisan voting or independent voting. The liberty of the electors in the exercise of the right vested in them by the Constitution to choose public officers on whatever principle or dictated by whatever motive they see fit, unless those motives contravene common morality and are, therefore, criminal, such as bribery, violence, intimidation or fraud, cannot be denied.

It has been suggested that committees can more readily make fusions and combinations than conventions. If such is the case what power is there to forbid such fusions and combinations as the electors choose to make? It has also been suggested that a committee may be exposed to corrupt influences. I do not see why corruption might not be used to prevent the indorsement of another candidate as well as to indorse him. But assuming the suggestion well founded, it may be a reason for denying the power of nominating to a committee, but the power cannot be vested in them to be exercised in favor of one class of nominees and against another. Could a provision be upheld that the committee should not nominate a man worth more than a million dollars on the theory that he would be more able to corrupt it than a poor man? The fact is plain that the legislative provision is solely intended to prevent political combinations and fusions, and this is the very thing that I insist there is no right to prevent or hamper as long as our theory of government prevails, that the source of all power is the people, as represented by the electors.

A similar question arose in Michigan. A primary election law in that state provided that before the name of any candidate should be placed upon the ballot at the primary election such candidate should make oath that he was a candidate for the office. This provision was held unconstitutional. The court said: ‘The authority of the Legislature to enact laws for the purpose of securing purity in elections does not include the right to impose any conditions which will destroy or seriously impede the enjoyment of the elective franchise. We cannot escape the conclusion that the provision in question does most seriously impede the electors in the choice of candidates for office, and it conflicts with the provisions of section 1, art. 18, of the Constitution. * * * This provision precludes the voters from choosing as a candidate one who declines for himself to seek the office.’ Dapper v. Smith, 138 Mich. 104, 101 N. W. 60.

It is no answer to this position to say that the law permits conventions to nominate the candidates of other parties, and that, therefore, neither the right of the elector nor that of the candidate is impaired. Legislation to be valid must not only not deprive the elector of his right to vote for whom he will, but for what candidate he will, and it must not discriminate in favor of one set of candidates against another set. Would a statute which authorized a committee to nominate as its own candidate a candidate of either of the two great political parties, but not a candidate of one of the smaller parties, or authorized it to name a black-haired man, but not a red-haired man, be valid? Yet, if the argument by which it is sought to sustain the legislation before us is sound, it would equally support such legislation. It could be said that no right was impaired because conventions were at liberty to nominate redhaired men, though committees were not.

The orders of the Appellate Division and Special Term should be affirmed, with costs.

GRAY, J.

I think that the determination below was right, and that the order appealed from should be affirmed. The courts have followed, as I understand, a decision made in 1902 by Mr. Justice Bischoff in Matter of Gillespie v. McDonough, 39 Misc. Rep. 147,79 N. Y. Supp. 182. There a precisely similar situation existed; the committee of the state convention of the Prohibition party was entitled to any, to extra compensation. Attorney General the candidate of the Democratic party for the same office. That decision has been acquiesced in for the past eight years. The Legislature has, repeatedly, had under consideration amendments of the election law (Consol. Laws, c. 17) and, in 1909, revised and consolidated that law; but the provisions of the section (136) in question, then and now, have not been changed. I am clear that when the committee of the Independence League party, duly authorized by resolution of its delegates, in convention assembled, ‘to make original nominations for justices of the Supreme Court,’ etc., placed in nomination the respondent, Garret J. Garretson, that was an original nomination by the party, and that it was not invalidated, within the provisions of section 136 of the election law, because Garretson was a candidate for the same office on the ticket of the Republican party. Section 120 of the law is entitled ‘Party Nominations,’ and provides that ‘party nominations of candidates for public office can only be made by a...