48 N.Y.S. 737 | N.Y. App. Div. | 1897
This is the most extraordinary proceeding which we have ever been called upon to review under the existing Election Law. It arises out of a controversy concerning the number of votes cast for C. Wesley Tompkins and John W. Balluffi,-who were rival candi
The report of the referee then came before the County Court upon a motion for confirmation, and it was declared confirmed by the final order herein, which, further, expressly sustained the action of the referee in his counting or refusing to- count certain numbered ballots, and disapproved his action in respect to certain others. The final order also directed that, it appearing that C. Wesley Tompkins had received one more vote for the office of overseer of the poor than John W. Balluffi, and that he, the said C. Wesley Tompkins, was entitled to said office, the board of canvassers should immediately issue a certificate of election to the said Tompkins, and that
I am unable to find in the Election Law any authority, whatever, for such a proceeding as this by any court, or any authority for the exercise of jurisdiction on the part of a County Court in such a case as was presented by the petition herein. The counsel for Mr. Tompkins, who desires to maintain the validity of the order, although he contends that it did not go far enough in his favor, refers us only to the last sentence of section 111 of the Election Law (Laws of 1896, chap. 909). That section is entitled “ Original statement of canvass and certified copies,” and it consists almost wholly of provisions relating to the manner in which the statement of the canvass shall be made up, and the disposition which shall be made of the ballots voted. It concludes with this direction' in regard to such voted ballots, which is the provision relied upon as conferring jurisdiction upon the County Court to recount the vote for overseer of the poor in the case at- bar: “ They shall be preserved inviolate for six months after such election, and may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county, and at the expiration of such time the ballots may be disposed of in the discretion of the officer or board having charge of them.”
In our opinion this provision is merely intended to prescribe what tribunal or officers might direct the opening and examination of the voted ballots, in case such opening and examination were necessary and appropriate in any judicial proceeding which might be instituted relating to the election. It does not assume to authorize anything more; and we cannot resort to implication to introduce a grant, of authority to a court which is not even mentioned therein to judicially investigate the manner in which the right of suffrage has been exercised.
Ample authority in this direction is conferred upon the Supreme Court, but not upon any other tribunal, by section 114 of the Election Law, which is entitled “ Judicial investigation of ballots.” That section authorizes a review of the action of the board of can
Even if the County Court had possessed jurisdiction, its action in referring the matter to a referee to personally supervise the recount and order the board of canvassers what ballots to treat as valid and what ballots to reject, before the learned county judge himself had passed upon such ballots, seems to us a proceeding of very questionable propriety.
The order appealed from must be reversed for want of jurisdiction in the County Court, without prejudice, however, to a proceeding in the Supreme Court under section 114 of the Election Law.
All concurred.,
Order reversed for want of jurisdiction in the County Court and proceeding dismissed, without prejudice, however, to a proceeding in the Supreme Court under section 114 of the Election Law.