People ex rel. Haverly v. Hanes

Cochrane, J.

The relator seeks by this proceeding to require the board of election inspectors to recount and re-. canvass ballots heretofore counted and canvassed by them, and on such recount to reject ballots heretofore counted by them and to count ballots heretofore rejected by them as void.

Where the terms of office of the inspectors have expired, as in this case, they cannot independently of the Election Law be compelled by mandamus to reconvene and recanvass the ballots. People ex rel. Gaige v. Reardon, 49 Hun, 425 ; People ex rel. Bailey v. Supervisors of Greene, 12 Barb. 217 ; People ex rel. Stevens v. Hayt, 66 N. Y. 606 ; People ex rel. Smith, v. Schiellein, 95 id. 133.

In People ex rel. Gaige v. Reardon, 49 Hun, 425 , 432, Follett, J., said: “I concur in the result, upon the sole *477 ground that the terms of office of the inspectors having expired, they cannot he compelled by mandamus to reconvene and recanvass the ballots. (The Secretary v. McGarrahan, 9 Wall. 298 ; United States v. Boutwell, 17 id. 604; State v. Elkinton, 30 N. J. L. 335.) The inspectors who were elected to succeed the defendants are without power to re-canvass the ballots. (Hadley v. Mayor, 33 N. Y. 603 .) A mandamus would be unavailing. A remedy for such cases should be provided by statute.”

I do not find any authority or judicial utterance at "variance with the above authorities. The cases cited by the relator are not in point. They merely hold that notwithstanding the provisions of the Election Law the court still has common-law jurisdiction in election cases which has not been abridged or limited by the provisions of the statute.

Section 114 of the Election Law provides for a recount of votes in certain eases by mandamus and it also provides that “ Boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings.” By this statutory provision the Legislature supplied a defect in the common law indicated in the suggestion of Eollett, J., above quoted that “ a remedy for such cases should be provided by statute.” The relator, however, does not claim that this proceeding is within the provisions of this statute and hence he is not entitled to its benefits.

There is another objection to this proceeding. Inspectors of election have both judicial and ministerial duties to perform. In determining what ballots shall be counted for or against any candidate, or any question voted on, or what ballots shall be rejected, they act judicially. They may perhaps be required by mandamus to perform merely ministerial acts in a particular way; and they may also be required to exercise their judicial functions; but they cannot be required by a common-law mandamus to decide in a particular manner. People ex rel. Francis v. Common Council, 78 N. Y. 33, 39 ; People ex rel. Millard v. Chapin, 104 id. 96 , 100 ; People ex rel. Smith v. Schiellein, 95 id. 124, 133 ; People ex rel. Fiske v. Devermann, 83 Hun, 181, 184 . It is the performance of a judicial act on the part of *478 the inspectors which is complained of in this ease; not the failure on their part to act judicially, hut the judicial conclusion reached by them; and it is this judicial conclusion which it is sought to have changed. The inspectors have performed the judicial act complained of. They may not have reached a correct conclusion but they have acted and exercised their judgment, and the conclusion, reached by them cannot be reviewed herein.

In the case last cited, Cullen, J., said: “ The inspectors having made a canvass, could not "be compelled or permitted to make a new one. By section 132 of the Election Law (chap. 680 of the Laws of 1892), even where the. returns are sent back to inspectors for omissions or clerical errors they are forbidden to change or alter any decision before made by them.”

Section 114 of the Election Law above referred to provides for a review of the judicial determinations of election-inspectors in mandamus proceedings. But this right on the part of the relator does not exist at common law and .as-this is a common-law mandamus proceeding the relator cannot avail himself of "the statute.

In view of the foregoing observations it is unnecessary to consider the question litigated on the trial as to whether the ballots have been changed since they were counted and canvassed by the defendants. ,

Peremptory mandamus disallowed, without costs.