People ex rel. Derby v. Rice

In this matter, on certain affidavits, an order was made hy the Supreme Court, at Special Term, directing the issuance of a writ of peremptory mandamus, commanding the state board of canvassers to issue a certificate of election, in accordance with the certified statements as to the result of an election for senator in the sixteenth senatorial district of the state, held on November 3,1891, filed with the said board, and to make a determination of the result of said election thereupon, solely; disregarding and not considering any other pxpers of any other nature whatever relating to said election, or the result thereof, and without taking any proofs, or considering any papers, with reference to the determination of sa'd election, except the said certified statements made pursuant to statute by the boards of county canvassers of the counties composing the said senatorial district. The moving papers, upon which the order I have just referred to, and largely quoted from, was granted, set forth a resolution passed by the board of canvassers of ¡Rensselaer county to the effect that, in transmitting the statements of the votes cast at the recent election to the state officers, there should accompany them a certain protest and certain objections, and that the attention of the board of state canvassers be called to the same and they be requested, before issuing a certificate of election to the office of senator, to consider such protest and proofs and such further proofs as may be presented. They alleged the receipt, filing and proposed submission by the state officers of the statement of the county board with the accompanying protest and papers. The moving papers furthér showed that the protest, objections, or statements, referred to Avere based upon alleged Adolations of the election laAvs of the state, in that there were irregularities in and illegal acts committed at the election in question. These violations of the laws are alleged to have been committed in the solicitation of votes within ten feet of the polling place, in the intimidation and bribery of voters, in the repeating of votes and in the failure of the returns to state the correct vote cast. These matters are set forth in an affidavit by the opponent of the candidate

If we were free to consider and determine the right, or propriety, to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the Supreme Court at a Special Term. Though the writ is in form one of peremptory mandamus, yet it is by force of its terms and commands in effect an order which restrains a board of state officers engaged in the performance of, or about to perform, a duty imposed by the statute. Upon the proofs it did not appear that the board of state officers, against whom the application was made, had refused, or neglected, to perform any duty imposed by law, or that they intended to commit any illegal act, not even that they had refused the relator any legal right; hence there was no occasion for, nor propriety in, a peremptory writ of mandamus, which issues in order to compel ministerial officers to exercise their functions; or where a specific duty has been imposed by law and they refuse to perform it; or they do not conform to the law; or when some legal right has been refused. But, passing over the necessity for the ,writ upon the grounds exhibited by the moving papers, if it is proposed to use it as a restraining order, or injunction, which certainly was its

There ought not to be any divergence of opinion, and there cannot be, as to what is the nature of these functions and duties, or what the limit of those powers. Ho judgment, which proceeds upon direct methods of reasoning, and which guides itself by the written law of the state, can fail to reach the conclusion that the office of these boards of canvassers is purely a ministerial one. Upon them devolves by statute the

There is no latitude afforded by the law for any determination by boards of canvassers outside of the official returns, which the statute prescribes as the duty of the county canvassers to make and file. Those returns of the county canvassers may consist solely of statements by them, based upon an estimate of the votes cast for the various offices, as they appear upon the original statements of the canvass by the inspectors in each district. The statements returned by the county boards cannot lawfully contain anything save the whole number of votes given in each town and district, the names of the candidates and the number of the votes given to each. Thus it is perfectly evident, from the provisions of the statute, that the limits for the action of the state board of canvassers are fixed, and that there is an utter absence of warrant for their proceeding upon anything but the certified statements required by statute to be made and filed by the county boards, and then to be transmitted to the state officers. The board is called into a temporary existence by statute, and for the mere purpose of computing the votes cast throughout the state, as returned to them from the boards of the several counties, and to declare the result of such computation. It is but a part of the machinery constructed by the legislature for the purpose of determining and declaring the result of the votes cast at the election. It is a very essential part of the system devised for conducting elections by ballot; but its importance consists only in the fact that it is the mode selected for the determination and the declaration of the final results. To imply the possession of a power to determine otherwise than upon the evidence, which the statute provides for; to invest this board, so manifestly created for the fulfillment of a mere ministerial function, with any judicial powers, would be counter to the plain terms of the statute. In a government resting upon universal suffrage, the purity of the ballot and a correct count, and an exact return of the votes cast and counted, made in

The Constitution provides for elections by ballot and the legislature enacts laws respecting such elections and prescribes the mode of declaring and certifying the result. For the settlement of contests over elections courts exist, with adequate powers to investigate the causes of complaints, and for that end to take proofs and to adjudge accordingly ; while ag to the elections, returns and qualifications of its own members, each house of the legislature shall judge. These boards of canvassers derive their powers strictly from the statute. They cannot hear or consider evidence outside of the returns. They are restricted by the law of their creation to certain prescribed functions, and in their fulfillment they act under the written commands of the statute.

As long ago as the case of People v. Cook ( 8 N. Y. 67 ), in this court, it was said by Judge "Willard that “ the legislature has not clothed either the state officers, or the subordinate boards of inspection, with power to hear and determine, by the means of evidence aliunde the return, the intention of the voters. The strictness with which these boards should be held to the record before them is dictated by sound policy and enlightened wisdom.” And again, speaking with reference to the acts of boards of county canvassers, the same judge said that, “ with a regular return from the district inspectors, which is fair on its face, they have no right to go behind it * * * they must act upon it as a regular return and leave the parties aggrieved to their remedy through the courts of justice.” The law, in the respects we are considering, was the same then as it is to-day.

The views we have expressed in this opinion, concerning the

For the reasons which have been given, the order appealed from should be affirmed.

All concur, Andbews and Finch, JJ., in result.

Order affirmed.