People ex rel. May v. Strang — 137 A.D. 848

Majority

p. 848

The People of the State of New York ex rel. Charles May, Appellant, v. Arthur F. Strang and Others, Composing the Boards of Inspectors of Election, etc., in the Town of Yorktown, Westchester County, New York, and William J. Wallin, as Commissioner of Elections of Westchester County, New York, Respondents.

Second Department,

April 22, 1910.

Headnote

Election Law—mandamus — limitation—review of determination of inspectors—requisites of moving papers.

A proceeding under the Election Law for a judicial review of the acts of inspectors in counting void and protested ballots must be begun within twenty days after, the election.

The determination of.inspectors of election as to. the result of the vote on a.town proposition submitted is conclusive,, except in so far as review is allowed -by statute. • . ' • -

-Where an application to compel inspectors of election to correct their canvass is based upon the grounds that the board erred in its determination in regard to

p. 849

certain void- and protested ballots, and that in one of the districts the canvass was made by only part of the inspectors, the case is one of erroneous canvass, not an incomplete one. Even if it should be considered incomplete as to the one district, the court will not interfere in the absence of allegations of facts showing that the result will be affected by a recount in that district. . ■

The court, in its discretion, may decline to interfere to ■ correct irregularities which do not affect the result of an election.

Appeal by the relator, Charles May, from an order of the Supreme Court, máde at the Westchester Special Term, bearing date the 9th day óf December, 1909, and entered in the office of the clerk of the county of Westchester, denying the relator’s application for a writ of mandamus.

John J. Torjoy [Benjamin Fagan with him on the brief], for the ' appellant.

Nathan P. Bushnell, for the respondents.

On the 29th day of November, 1909, petitioner applied for a peremptory writ of mandamus to compel the inspectors of election of election districts numbered 1, 2 and 3, in the town of Yorktown, who acted at the general election held on November 2, 1909, to make corrections in their statement of canvass, to cause their canvass and count of the ballots in the said several election districts to ■ be correctly stated and canvassed, and to proceed to a recount of the ballots objected to as marked for identification or as void. The action of the inspectors which it was sought to review related to ballots designated “ town propositions submitted,” such propositions relating to local option in the said-town. The ’application is based ' upon two grounds: First, that the board of inspectors erred in their determination as to certain ballots claimed to be void or protested ballots; and, second, that as to the ballots which were cast in election district No. 1, relating to “ town propositions submitted,” the canvass was made by a part only of the inspectors in that district.

If this proceeding be treated as one under the Election Law for a judicial review of the acts of the inspectors, so far as the same relate to a count and canvass of the void and protested ballots, relator is met by the insuperable objection that his- application, was

p. 850

made too late. The application for a judicial investigation of such ballots must be made within twenty days after the date upon which the election was held. (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], § 381.) Relator claims that' the language of this section,^ strictly interpreted, relates only to' ballots cast for candidates for public office, and not to those cast by electors upon public questions, and that this proceeding is . not had under the Election Law. If that be so, then relator is without remedy, for the Legislature has chosen to make the determination of the inspectors of election final and conclusive upon these questions, except in so. far as it has by appropriate statute provided for some .review thereof.. This it was within their power to do. (People ex rel. Brink v. Way, 179 N. Y. 174 ; Matter of Hearst v. Woelper, 183 id. 274 ; People ex rel. March v. Beam, 188 id. 266 .) 27either is tlie. relator entitled to any relief upon the ground that the. actual count and canvass in one of the election districts was not participated in by one of the members of the board. This is not the case of an incomplete canvass, where tlie votes-had not been counted at -all. At most, it was an erroneous canvass. Tlie distinction has beén recognized. (People ex rel. McLaughlin v. Aumenwerih, 135 App, Div. 893 ; affd., 197 N. Y. 340 .) Beyond that, the moving papers fail to show that if this be treated as an incomplete canvass so far as this election district is concerned, the result of the election Will be affected thereby. There is no state-' ment as to-the number of ballots cast in that district, nor how many of them were marked void or protested. The court in its discretion may decline to interfere to'correct irregularities which do not affect the result of an,election. (People v. Cook, 8 N. Y. 67 .) The order appealed from fails to show that the application was not denied in the exercise of discretion^ instead of as matter of right. If so, we cannot say that on these papers the discretion was not wisely exercised. ' ' . " ' •

The. order appealed from should be affirmed, with ten ' dollars costs and disbursements.’

Hirschberg, P. J., Jerks, Rich and Carr, JJ., concurred.

Order affirmed, with ten dollars cost's and disbursements,

Cases cited

People ex rel. Brink v. Way 179 N. Y. 174 N.Y. 1904-08-05 p. 850
People ex rel. De Groot v. Board of County Canvassers 197 N. Y. 340 N.Y. 1910-01-25 p. 850
People v. Cook 8 N. Y. 67 N.Y. p. 850