Majority
p. 259People ex rel. Gregg et al. v. Board of County Canvassers. (Supreme Court, General Term, Third Department. December 2, 1889.) Argued before Learned, P. J., and Fish and Landon, JJ.
Headnote
Elections and Voters—Mandamus to Canvassers.Mandamus will not lie, under Laws N. T. 1880, c. 460,, giving the supreme court authority to correct errors of boards of county canvassers by mandamus, to prohibit the board of county canvassers from canvassing and certifying the returns because of mere informalities, when there is only one return made, and there is no authority given by statute to make any other.
Appeal from circuit court, Rensselaer county.
Application for a writ of mandamus by Samuel Gregg and another against the board of canvassers of Rensselaer county to prohibit defendants from canvassing and certifying the returns of a certain election district. From an order denying the motion plaintiffs appeal.
Geo. B. Wellington, for appellants, R. A. Parmenter, for respondents.
Chapter 460 of the Laws of 1880 extends the authority of the supreme court by mandamus to the correction of errors in the determination of boards of county canvassers. The single question presented to us under this act is whether the county canvassers have made any error in their determination respecting the returns from the election district composed of the Sixth ward of the city of Troy. The returns for the election district were duly
p. 260
■made and signed by the inspectors, and were filed in the proper office, and are now before the board of county canvassers. The presumption is that they are true. Some informalities are alleged, but these do not call for the suppression of the returns. Ho other returns exist, and it does not appear to be possible to make any other "under any authority given by statute. The real difficulty is not in the determination of the board of county canvassers, but in an alleged criminal imposition practiced upon the board of inspectors of the election district. The affidavits submitted tend to show that the senatorial box was feloniously abstracted before the votes deposited therein were canvassed, and that another box containing senatorial ballots was substituted in its place, and that the district canvassers actually canvassed the ballots thus feloniously substituted. If there were two returns, one of the false box and one of the true, and the county canvassers had determined to canvass the false instead of the true, the court might correct such an error. People v. Canvassers, 20 Abb. H. C. 23. The difference between giving effect to the true vote of the district and suppressing it altogether is great. To suppress the vote may or may not correct the alleged error, even if the crime alleged to have been perpetrated upon the electors of the district can be called an error of the county canvassers, or the cause of one. It is probable that it would be the substitution of one error for another. It is obvious that the act of 1880, authorizing the court to correct the errors in the determination of the board of county canvassers, does not confer upon it the authority to institute and conduct the investigation which it seems to us ought to precede and justify an order which will nullify the return of the vote of the district. The proper investigation into the alleged crime may be made by other authority; and, if the crime be found, the true vote may be ascertained in a case involving the election of a senator. The order appealed from must be affirmed.
All concur.