#### Matter of the Objections to the Certificate of Nomination of Joseph P. Hennessy and of Richard H. Mitchell, for State Senator for the Twenty-first Senatorial District.

(Supreme Court, York Special Term,

October, 1900.)

Elections — Delay of New York police board, to decide a contest over certificates of nomination, until last statutory day of review, not permitted to oust the Supreme Court of its right to review.

Although the Election Law requires an order of the Supreme Court or a justice thereof, reviewing a determination of the board of. police commissioners of the city of New York relative to objections filed to conflicting certificates of nomination for the same office, to be made at least fifteen days before the election, yet, where the police board delays its action in the matter until the last day upon which it can be reviewed, the Supreme Court is not thereby ousted of its power to determine which of the two candidates was legally nominated and, in the interests if justice, will determine the same.

In contests arising under the Election Law, technicalities should be disregarded and the statute construed so as to give the majority of a nominating convention an opportunity to express their choice.

Objections filed to the certificates of nomination of Joseph P. Hennessy and of Richard H. Mitchell, for State Senator for the twenty-first Senatorial District.

Stickney, Shepard & Ordway (Samuel H. Ordway, of counsel), for Hennessy.

John F. McIntyre, for Mitchell.

John Whalen, Corporation Counsel (Theodore Connoly, of counsel), for Police Board of the city of New York.

Lawrence, J.

In this case the objections which were filed to the certificate of the nomination of Mr. Hennessy by Mr. Mitchell, and to the certificate of Mr. Mitchell by Mr. Hennessy, were filed respectively on the ninth and eleventh of October. The first hearing before the police board was fixed for October sixteenth. The *617hearing was adjourned to the seventeenth, and then to the nineteenth, and the final adjournment was to the twentieth of October inst. On the twenty-second of October a decision of the police board was rendered sustaining the objections to the certificate of Mr. Hennessy and overruling the objections to the certificate purporting to nominate Mr. Mitchell, the board determining that the convention which nominated Mr. Hennessy was not legally constituted and empowered under the law to make the nominations for the Democratic party in the Twenty-first Senatorial District, and that the convention which nominated Mr. Mitchell was regularly constituted and legally held. Section 65 of the Election. Law (L. 1890, ch. 909) provides that *“*A written objection to any certificate of nomination may be filed with the officer with whom the original certificate of nomination is filed within three days after the filing of such certificate. If such objection be filed, notice thereof shall be given forthwith by mail to the committee, if any, appointed on the face of such certificate for the purposes specified in section sixty-six of this act, and also to each candidate placed in nomination by such certificate. The questions raised by such written objection shall be heard and determined as prescribed in section fifty-six of this act.” It is not disputed in this case that the objections to the certificate were duly served and the parties duly notified of such objections. Section 56 of the Election Law provides that *“*the supreme court, or any justice thereof, within the judicial district, or any county judge within his county, shall have summary jurisdiction upon complaint of any citizen, to review the determination and acts' of such officer, and to make such order in the premises as justice may require, but such order must be made on or before the last day fixed for filing certificates of nominations to. fill vacancies with such officer as provided in subdivision one of section sixty-six of this article. Such a complaint shall be heard upon such notice to such officer as the said court or justice or judge thereof shall direct.” The first subdivision of section 66 of the Election Law provides that the certificate of nomination therein referred to *“*shall be filed in the office in which the original certificate was filed * * * at least fifteen days before the election if filed with the county clerk or the board of police commissioners of the city of New York, * * * or the city clerk of any other city.” It will be observed that in this case the decision of the police board sustaining *618the Mitchell certificate and overruling the Hennessy certificate was filed on Monday morning just fifteen days before the election, which is to occur on the sixth of November. In a case of this character, if the board or clerk has neglected to dispose of the objections to the certificate until the last day when a court, or a justice thereof, can review its decision, I have very strong doubts whether the provision of section 56 of the Election Law should be construed to be mandatory. This precise question was not before the Court of Appeals on the appeal taken in the case of Matter of Emmet, 150 N. Y. 538. The question there was whether an appeal would lie to the Appellate Division of the Supreme Court from an order made under section 56 of the Election Law reviewing the determination of the filing officer upon a contested certificate of nomination. It had been held in the court below (Hatch, J., dissenting), that the Appellate Division could make no order which would be effective, and that the appeal should be dismissed. On the appeal to the Court of Appeals it was decided that the limitation as to fifteen days applied only to the order of review provided for therein, and did not limit the time within which the Appellate Division may entertain and adjudicate an appeal from such an original order. It was not decided that no case could arise in which the Supreme Court, or a judge thereof, could review the decision of the filing officer, if the latter neglected to make his decision until after fifteen days prior to the election had expired, or so near in time to the expiration of said fifteen days as to render a. review by a justice of this court within that time impossible. It is obvious, if the construction is to prevail that a party is without remedy under such circumstances, it is within the power of the board or county clerk, in every instance, to deprive a person claiming to have received a, regular nomination from a political party, by simply deferring action until it is too late for a court or a justice to review its decision, of all the benefit of the statutory provision. Such cannot, I think, have been the intention of the Legislature. Mandatory words used in a statute are not in all cases to be construed as imperative. Stewart v. Slater, 6 Duer, 83; Wood v. Chapin, 13 N. Y. 509; McRoberts v. Winant, 15 Abb. Pr. (N. S.) 210. It is the design of the Election Law that in contests arising under it technicalities should not be considered, but that substantial justice ¡shall be done by giving to the majority of those duly elected to jhe convention which makes a nomination *619an opportunity to express their choice. See Matter of County Clerk, 21 Misc. Rep. 543, per Kellogg, J.; affd. 20 App. Div. 637; French v. Roosevelt, 18 Misc. Rep. 307; Matter of Broat, 6 id. 445-452. And as was well said by Chief Justice Andrews, in People ex rel. Hirsh v. Wood, 148 N. Y. 147: *“*The object of elections is to ascertain the popular will and not to thwart it. The object of the election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions, to make the right of voting insecure and difficult.” I have read over the affidavits and proofs which were presented in support of, and in opposition to, the two certificates before the police board, and from them I think that it must be determined that, at the meeting of the senatorial convention, held at Morrisania Hall on the evening of October fifth, substantially all the delegates both from the Thirty-fourth and Thirty-fifth Assembly Districts were present. In that convention the Thirty-fifth Assembly District was entitled to 201 delegates and the Thirty-fourth Assembly District to 175, making a total of 376. I am also satisfied, by the preponderance of evidence, that there was no election of a temporary chairman, and that no temporary organization was effected before the recess was taken which is referred to in the affidavits. Attempts were made at such organization, but they were frustrated by the noise, tumult and violence which prevailed in the hall. The affidavits are very conflicting upon this point, but the weight of the evidence, I am constrained to say, is with the Hennessy party or faction. The statement of 191 delegates that no organization was effected and no temporary chairman chosen before such recess is corroborated by the affidavits of seven persons who are connected with the press and not with either faction of the Democratic party. It is also to be noted that there is no affidavit from Mr. Moebus, who is the leader of the northern half of the Thirty-fourth Assembly District, sustaining the affidavits read in support of the Mitchell nomination as to the proceedings on the night of October fifth and on the morning of October sixth. Under the Primary Election Law, section 10, it is provided that “ the temporary chairman shall be chosen on the call of the roll, and, as the name of each delegate is called, he shall rise in his place and declare his choice for such officer,” and that, *“*unless the convention shall otherwise order, the permanent chair*620man shall he chosen on roll call.” The chairman of the Thirty-fifth Assembly District and the chairman of the southern half of the Thirty-fourth Assembly District seem to have been designated to call the meeting to order; but we have no- affidavit from the officer who, under the rules and usages of the Democratic party,, was entitled to make such designation, as to- who should make such call in the event of a contest between the delegates as to the organization of the convention. It seems to m.e, after reading the affidavits in this case, that the conclusion must be reached that no action with reference to the selection of a temporary or permanent chairman had been taken when the recess was taken, about 4:30 a. m. to 10 o’clock p. M. on the- sixth of October. It is shown, by the affidavits of 191 delegates, that that recess was taken by unanimous consent. Those delegates constitute more than a majority of the convention, and r; is clearly established that when the convention met on Saturday evening, October sixth, there was a majority of the whole number of delegates present, to-wit, at least 191 delegates from the Thirty-fifth Assembly District. It also seems to me to be established that the convention was then and there organized in accordance with the provisions of the Primary Law, and that ¡at such convention Hennessy was nominated. So far as regards the convention which met on the eighth of October, to which time it is claimed the convention was adjourned, I deem it sufficient to ¡say that I do not think that the- contention that twenty-six delegates from the Thirty-fifth Assembly District attended can be sustained. Each of the twenty-six delegates from the Thirty-fifth Assembly District who are claimed to have attended that convention, declares, as I understand the affidavits, under oath that he was not present, but was present at the convention on Saturday evening, at which Hennessy was nominated, and that he had voted foil Hennessy. The statement that they did attend the Mitchell convention on the eighth inst. cannot, therefore, be true. For these reasons I am of opinion that the objections of Hennessy should have been sustained, and the objections of Mitchell overruled.

Ordered accordingly.