In re Wilkins

Ingraham, P. J.: ■ Timothy D. Sullivan was duly elected Eepresentative in Congress for the thirteenth Congressional district for the term beginning March 4, 1913, and ending March 4, 1915, at the general election in November, 1912. On September 1,1913, by his death a vacancy was created in said office, and the representatives of the various parties in New York nominated candidates for Eepresentative in Congress to fill the vacancy, but the petitioner, who is a citizen and duly qualified voter within the thirteenth Congressional district of the State of New York, objected to the board of elections placing the name of this candidate upon the official ballot upon the ground that the Governor of the State of New York had not issued a writ of election to fill said vacancy, as provided for by article 1, section 2, subdivision 4, of the Constitution of the United States. The question arises under section 292 of the Election Law (Consol. Laws, chap. II [Laws of 1909, chap. 22], as amd. by Laws of 1911, chap. 891), which provides that “ A vacancy occurring before October fifteenth of any year in any office authorized to be filled at a general election, shall be filled at the general election held next thereafter, unless otherwise provided by the Constitution, or unless previously filled at a special election.” It is also provided that “A special election shall not be held to fill a vacancy in the office of a representative .in Congress unless such vacancy occurs on or before the first day of July of the last year of the term of office, or unless it occurs thereafter and a special session of Congress is called to meet before the next general election, or be called after October fourteenth of such year.” The 1st clause of this section would seem to provide for the filling of a vacancy occurring before October fifteenth of any year at the general election to be held in the following November. This provision of the Election Law seems to me to justify the board of elections in filing the proper nominations for Member of Congress, although the Governor has issued no writ of election to fill such vacancy. Whether or not Congress will recognize the election of the Congressman so elected is a matter for Congress and not for this court to determine. (See Matter of Independ [525] ent Nominations, 186 N. Y. 279.) It is also provided that the Secretary of State shall issue what is called a supplementary call for an election to fill the vacancy caused by the death of a Eepresentative in Congress for this district; but whether such a call is a writ of election issued by the executive authority of the State, it is not necessary for us to determine. There is a vacancy under section 292 of the Election Law that occurred before the fifteenth day of October, and, therefore, is to be filled at the general election in November following. We think that under the law of the State of New York the nomination was regular, and it follows that the order appealed from must be affirmed. Clarke, Scott, Dowling and Hotchkiss, JJ., concurred. Order affirmed.