Jaquith v. Simon

• Decision Date: 17 August 1962
• Parties: David H. JAQUITH, E. Vernon Carbonara, Thomas D. Cole, Frederick S . Dennin, Kieran O'Doherty, Jeanne Morton, Donald R. McGowan, James McGinley and John B. Sneddy, on behalf of themselves and all other qualified voters of the State of New York similarly situated, Petitioners, v. Caroline SIMON, Secretary of State of the State of New York, Respondent, for an order pursuant to Article 78 of the Civil Practice Act.
• Court: New York Supreme Court

Page 735

231 N.Y.S.2d 735

35 Misc.2d 508

David H. JAQUITH, E. Vernon Carbonara, Thomas D. Cole,

Frederick S . Dennin, Kieran O'Doherty, Jeanne Morton,

Donald R. McGowan, James McGinley and John B. Sneddy, on

behalf of themselves and all other qualified voters of the

State of New York similarly situated, Petitioners, v. Caroline SIMON, Secretary of State of the State of New York,

Respondent, for an order pursuant to Article 78 of

the Civil Practice Act.

Supreme Court, Special Term, Albany County.

Aug. 17, 1962.

James J. Leff, New York City, for petitioners.

Louis J. Lefkowitz, Atty. Gen. (Herbert H. Smith, Asst. Atty. Gen ., Albany, of counsel), for respondent.

LAWRENCE H. COOKE, Justice.

In this proceeding instituted under article 78 of the Civil Practice Act, petitioners, alleging to be qualified voters registered at the last preceding general election from various respective addresses within the State and suing 'on behalf of themselves and all other qualified voters of the State of New York similarly situated', seek a mandamus order directing '(1) that the respondent Secretary of State obey the command of the provisions of the United States Constitution and the Constitution of the State of New York and accept for filing as presumptively valid, as provided by § 103 of the Election Law, independent nominating petitions nominating candidates for offices to be voted for by all the voters of the State any petition which may be filed with said respondent during the period prescribed by law for such filing when such independent nominating petitions are in proper form and appear to bear the requisite number of signatures, authenticated as prescribed in the Election Law of the State of New York without regard to the additional requirement that such petitions shall be signed by voters of whom at least 50 shall reside in each county of the State, the Counties of Fulton and Hamilton to be regarded as one county; and (2) that no independent nominating petition for statewide office duly filed in the Office of the respondent Secretary of State, to which objections and specifications may be filed pursuant to Section 145 of the Election Law, if otherwise valid, be declared invalid by the respondent Secretary of State solely upon the ground it does not contain the signatures of at least 50 voters residing in each county of the State, the Counties of Fulton and Hamilton to be considered as one county.'

It is alleged in the petition, in substance and among other things: that the respondent Secretary of State, pursuant to the duty imposed upon her under section 82 of the Election Law, caused to be printed and distributed at public expense a volume of the Election Law for 1962 including a political calendar and a summary of the provisions relating to the requirements for independent nominating petitions for statewide offices; that in 1954 subdivision 5(a) of section 138 of the Election Law was enacted into law; that said subdivision of said section violates certain stated portions of the State Constitution and that of the United States, including the equal protection clause of the Fourteenth Amendment of the United States Constitution; that petitioners are members of the Conservative Party, Inc., a membership corporation and a political committee within the meaning of Article 13 of the Election Law of the State of New York; that petitioners with others and the Conservative Party have engaged in certain political activities toward the nomination of candidates for offices to be voted for by all the voters of the State at the general election to be held on November 6, 1962; that petitioners and others have printed independent nominating petitions of the Conservative Party which they propose to circulate and sign for the purpose of nominating certain named persons (which prospective candidates are among the petitioners herein) for the offices of Governor, Lieutenant Governor, Comptroller, Attorney General and United States Senator at said election; that the requirement of subdivision 5(a) of section 138 of the Election Law that such petition be signed by at least 50 voters in each of the counties of the State is an arbitrary, unreasonable and unconstitutional interference with and infringement of the right to circulate said petition; and that respondent has acted in a manner to serve notice that she has acted to enforce and intends to enforce the provisions of such unconstitutional statute and that any petitions which will be filed by any person seeking to make a nomination to statewide office will be rejected if they do not have the signatures of at least 50 voters in each of the counties of the State, Fulton and Hamilton being considered as one.

With her answer, respondent submits certain objections in point of law, among others, that the proceeding is premature in that a nominating petition cannot be signed or filed by anyone until after the return date of the order to show cause herein and that the petitioners are not aggrieved in that it is not alleged that there will be less than 50 signatures from any county, considering Fulton and Hamilton as one, on the proposed nominating petition when filed. Respondent's memorandum of law poses the question as to whether an article 78 proceeding in the nature of mandamus is a proper one.

Generally, mandamus will lie only to remedy a wrong that has been suffered and not to prevent an anticipated wrong (Matter of Rooney 26 Misc. 73, 74, 56 N.Y.S. 483, 484; In re Brown, 14 N.Y.S. 450, 451-452; 22 Carmody-Wait, New York Practice, p. 212) and an application in the nature of mandamus is premature where sufficient time remains for performance, within the terms of the applicable statute, of the duty sought to be compelled (Matter of Eldred v. Monaghan, 6 Misc.2d 658, 164 N.Y.S.2d 202; Matter of Liebman v. Van Denburg, 168 Misc. 155, 156-157, 6 N.Y.S.2d 428, 430; People ex rel. Smither v. Richmond, 5 Misc. 26, 35, 25 N.Y .S. 144, 150; Civ.Prac.Act. § 1285, subd. 3; 22 Carmody-Wait, New York Practice, p. 381). However, the decision in People ex rel. Hotchkiss v. Smith, 206 N.Y. 231, 99 N.E. 568, points out an exception to these general rules. There, petitioner sought a writ of mandamus directing defendants, composing the Board of Elections of Putnam County, to disregard as unconstitutional and void certain provisions of the Election Law in regard to independent nominations. Defendants insisted that the proceeding was premature and that the court had no jurisdiction to entertain the proceeding until a certificate for an independent nomination had been presented to them for filing and they, as a board, had refused to file it. The Court rejected said contention and stated at page 241 of 206 N.Y., at page 571 of 99 N.E.:

'The courts have not infrequently condemned efforts by persons to obtain from them decisions upon abstract and academic questions. Ordinarily the courts will not assume jurisdiction to decide questions in advance of some action taken or refused actually involving the rights of persons interested in the question sought to be determined. Where private interests only are involved, the propriety of refusing such jurisdiction cannot be reasonably denied. If a question presented in an action or proceeding relates to the duties of public officers in matters of a public nature, the same reason for a refusal to take jurisdiction does not always exist. In this case a refusal to entertain the proceeding might and probably would result in the failure of the action of the court being of any practical avail. It appears that the organization represented by the petitioners has not been in existence a sufficient length of time to enable it to have a standing as a party organization within the terms of the statute. The organization intends to make independent nominations, and one of the defendants has stated that the election board will comply with the terms of the amendments to the Election Law made in 1911. If this proceeding is not entertained, it may result in preventing such independent nominations. The situation is exceptional and extraordinary. The proceeding should be entertained, although it is not intended as a precedent in cases between individuals as such or in any case except where the facts and circumstances are equally exceptional and extraordinary. See the action of this court in Matter of Hopper v. Britt, 203 N.Y. 144, 96 N.E. 371, 37 L.R.A. (N.S.) 825; Matter of Hopper v. Britt, 204 N.Y. 524, 98 N.E. 86; and also of the court in State ex rel. Morris v. Wrightson, 56 N .J.Law 126, 28 Atl. 56, 22 L.R.A. 548.' (emphasis supplied)

Here the situation is similar in this regard and likewise exceptional and extraordinary. See also: Matter of McCabe v. Voorhis, 243 N.Y. 401, 412, 153 N.E. 849, 851; Childs v. Cohen, Sup., 65 N.Y.S.2d 75.

Is mandamus under article 78 an appropriate remedy? In Mtr. of Diocese of Rochester v. Plan. Bd. of Town of Brighton, 1 N.Y.2d 508, 519-520, 154 N.Y.S.2d 849, at page 856, 136 N.E.2d 827, at page 832 it was held:

'It is a general rule that a party cannot, in the same proceeding, rely upon a statute or retain benefits thereunder and attack its constitutionality. Fahey v. Mallonee, 332 U.S. 245, 67 S .Ct. 1552, 91 L.Ed. 2030; Buck v. Kuykendall, 267 U.S. 307, 45 S.Ct. 324, 69 L.Ed. 623; Shepherd v. Mount Vernon Trust Co., 269 N.Y. 234, 199 N.E. 201. The proper way to raise the constitutional question is by way of a separate action or proceeding, Baddour v. City of Long Beach, 279 N.Y. 167, 18 N.E.2d 18, 124 A.L.R. 1003, motion for reargument denied 279 N.Y. 794, 19 N.E.2d 90, appeal dismissed 308 U . S. 503, 60 S.Ct. 77, 84 L.Ed. 431; Matter of Romig v. Weld, 276 App . Div. 514, 517, 95 N.Y.S.2d 571, 573, and we are advised that such an independent action is now pending.'

It is noted that the Court of Appeals cited Matter of Romig v. Weld, 276 App.Div. 514, 517, 95 N.Y.S.2d 571, 573, at which latter page the Appellate Division stated:

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