Opinion
March, 1912.
Richard C.S. Drummond, for petitioner.
W.R. Hopkins, for Charles H. Swarthout.
James A. Parsons, deputy attorney-general, for secretary of state.
There was received at the office of the secretary of state on March 11, 1912, the last day under the law for filing designations for party nominations (Election Law, § 49, subd. 2, as amd. by Laws of 1911, chap. 891), a petition designating Charles H. Swarthout as a Democratic candidate for member of the state committee for the fortieth senatorial district, composed of the counties of Cayuga, Seneca and Cortland. The petition came in two parts, one from Seneca county, containing 241 names, and one from Cayuga, containing 191 names, a total of 432; none came from Cortland county. On March twelfth two other papers came by mail to the office of the secretary of state, each from Cayuga county, containing the same designation, one having 20 names and the other 18 thereon. It is conceded that under the Election Law (§ 48) 451 names were requisite to constitute a valid petition for a party nomination for the position in question, there having been 11, 268 votes cast for the Democratic candidate for governor in that senatorial district at the last gubernatorial election. It is conceded that 11 names on the papers filed in the office of the secretary of state March eleventh cannot properly be counted. Two other names appear to be subscribed thereto twice, which requires the deduction of two more names. On one sheet of the papers received from Seneca county containing 16 names the notarial certificate has not been added. Mr. Bishop, one of the signers of that sheet, has testified on the hearing before me that he signed and swore to the petition before one James H. Clary, a notary public, and that he was present when each of the other persons signed his name on such sheet and that the affidavit of each of them was taken by such notary. He has omitted, however, to sign the certificate attached thereto to that effect and the petition was filed with the secretary of state with such omission and is still in that condition. It is, therefore, on its face, defective to that extent. Many other defects in the petition are urged which need not be considered, for it is evident that, if the two papers received at the office of the secretary of state by mail on March twelfth cannot be considered to bring the number of signers above the requisite 451, the attempted nomination must fail. Each of the envelopes containing these papers bears the postmark at Auburn, March 11, 1912, one at five P.M. of that day, and they were neither of them received at the secretary's office until the next day, which was one day late. No reason is assigned by the respondents to excuse the delay except that the law under which they were acting was new and that the magnitude of the task in procuring the requisite number of names was such that the filing could not have been made earlier. It is evident, however, that the parties concerned in the movement to make this nomination were aware of the fact that March eleventh was the last day under the law for filing the petition, and that under the statute time is an essential element of any successful working of the scheme of conducting elections thereunder. The Court of Appeals has held with respect to a similar statute that the statutory requirement as to the time when certificates of nomination should be filed was mandatory and that the Supreme Court might relieve from accidents or mistakes causing delay in such filing only when the delay was not due to the negligence or fault of the convention making the nomination, or of the party to whom the filing of the certificate was intrusted. Matter of Darling, 189 N.Y. 570. No such case is presented here. On the contrary the delay in filing the two last named papers appears to have been caused by the want of diligence of those having them in charge and with full knowledge of the statutory requirements with respect to the time for filing.
It appears that the secretary of state, under some misapprehension of the law, has sent forth a certificate of the nomination of Mr. Swarthout to the custodians of primary records of Cayuga and Seneca counties.
These custodians should be directed to return these certificates to the secretary of state and the application of the petitioner should be granted.
Application granted.