199 A.D. 861 | N.Y. App. Div. | 1920
The New York county board of canvassers, of which the relator is chairman, met and organized pursuant to the Election Law for the purpose of canvassing the vote of the election of November 2, 1920. When the envelopes containing the returns from the eleventh election district of the third Assembly district were produced before said board and opened, it was found that the official return and tally sheets were in said envelopes but were entirely blank and failed to show the votes cast for the various candidates. The board of county canvassers thereupon summoned the canvassing inspectors of said election district and required them forthwith to meet and make corrections of their returns. The inspectors then stated that they could not complete and make out proper returns for the reason that they had failed to fill out the
The court granted the motion for a peremptory mandamus.
It is well settled that a proceeding of this character may not be entertained by virtue of an inherent power of the court, but must find authorization and support in the express provisions of the Election Law. (Matter of Tamney v. Atkins, 209 N. Y. 202, 206; People ex rel Cantor v. County Board of Canvassers, 165 App. Div. 142, 144.) Section 374 of the Election Law (as amd. by Laws of 1916, chap. 537) provides that after the canvass is complete and the various acts required of the inspectors have been performed, the inspectors shall return the ballots voted, except the protested, void and wholly
The power to regulate the canvass of the ballots and the subsequent disposition of them rests with the Legislature alone. Prior to 1896, all the ballots and memoranda of the canvass were destroyed immediately after the inspectors had
1. The ballot boxes may be opened and their contents examined upon an order of the court. This provision “ is not intended to confer upon a judge the power to capriciously order ballot boxes to be opened and examined, nor will it be so construed by the courts. The power is conferred to the end that it may be used in judicial proceedings pending or about to be commenced.” (People ex rel. Brink v. Way, 179 N. Y. 174, 181.) This section gives no power to the court to order a recanvass of the ballots by the inspectors of election. The policy of the law is that, immediately on the close of the polls, the vote shall be publicly canvassed by the inspectors and the result announced and certified by the election officers and that this canvass shall be made simultaneously in all the election districts of the State. It is also required that the county canvassers shall promptly discharge
It is not necessary for us to discuss the question of the rights of candidates to an inspection of the ballots, for this proceeding is not instituted by a candidate, but by the relator as “ a voter and as chairman of the board of county canvassers.” Under the Election Law, a candidate does not have the right to a recanvass of the ballots in the ballot boxes, but only to a recanvass of those marked protested, void or blank (§ 381, as amd. supra).
It is urged that the court should exercise its power by way of mandamus, for the reason that there is no other way by which the returns can be completed and furnished to the county canvassers. There is of course no way that the tally sheet can now be reconstructed other than by a count of the ballots contemporaneous with the tally entered thereon. It is the original entry of the tally of the vote, and the Election Law provides (§ 368, subd. 1, as amd. by Laws of 1914, chap. 244) that the chairman of the board of inspectors shall announce the vote as therein prescribed on each section of each ballot in a loud and distinct voice, and that “ as each vote is announced each poll clerk shall immediately tally it in black ink, with a downward stroke from right to left upon the official tally sheet provided for the purpose, also carefully tallying one for each blank or void vote.” The purpose of this is to have an accurate record of the detail of the count made at the time each vote is announced. Such a record cannot now be made. If a recount were ordered and a tally sheet kept, it would be evidence of the tally of the recount, but would afford no evidence of the tally of the count on election night. And to have the inspectors make a tally sheet without a count, would be entirely futile, as it would be evidence of nothing.
That the tally sheet is not absolutely essential to the canvass of the vote appears from section 431 of the Election Law (as amd. by Laws of 1916, chap. 537). The law provides
“ The chairman of the board of inspectors shall, forthwith upon the completion of the count of votes and the announcement thereof, deliver to the police officer on duty at such place of canvass a statement subscribed by the board of inspectors, stating the number of votes received by each candidate for office and the number of votes cast for and against all questions, propositions or constitutional amendments submitted. Such statement shall forthwith be conveyed by the said officer to the station-house of the police precinct in which such place of canvass is located, and he shall deliver the same inviolate to the officer in command thereof, who shall immediately transmit by telegraph, telephone or messenger, the contents of such statement to the officer commanding the police department of such city or village. In a city of over one million inhabitants, such commanding officer shall cause all such returns to be immediately tabulated so that the final results may be known as early as possible, and within twenty-four hours of its receipt at the station-house such statement itself shall be filed with such commanding officer. Such statement shall be preserved for six months by the police, and shall be presumptive evidence of the result of such canvass for each such office.”
Affidavits of the inspectors of election of this district were presented on the application herein that they had prepared, certified and delivered such a statement to the police officer on duty at the place of canvass to be transmitted by him to the station house; that such statement gave correctly the num
There exists, therefore, an official statement" of the result of the canvass of the vote in such election district, made in pursuance of law, duly certified as correct by the officials charged with the duty of making the canvass, and this statement can be produced from official custody. The law provides that it shall be presumptive evidence of the result of such canvass.
This is the only evidence in existence of the result of the canvass of the vote made by the inspectors immediately after the election of November 2, 1920, in the eleventh election district of the third Assembly district, and of necessity resort must be had to it. The board of county canvassers should send for the statement of the canvass of the vote of the said election district filed with the commanding officer of the police department of the city of New York and summon the election officers whose names are subscribed thermo and direct them forthwith to meet and fill in the matters omitted from the return filed with the county clerk, in accordance with the canvass of said votes, as it appears upon the statement made by them and filed with the commanding officer of the police department, and to certify to the said return in the manner provided by law, which, shall then be and constitute the official return of the votes cast at said election in said election district, and shall be canvassed as such by the board of county canvassers.
The order is reversed and the application for a peremptory writ of mandamus is denied.
Clarke, P. J., Dowling, Smith and Greenbaum, JJ., concur.
Order reversed and application for peremptory writ of mandamus denied.
See Consolidation Act (Laws of 1882, chap. 410), § 1898; Election Law (Gen. Laws, chap. 6; Laws of 1892, chap. 680), § 115, as amd. by Laws of 1895, chap. 810; Election Law (Gen. Laws, chap. 6; Laws of 1896, chap. 909), § 111; Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22), § 373, as amd. by Laws of 1913, chap. 821; Id. § 374, as amd. by Laws of 1913, chap. 821, and Laws of 1916, chaps. 31, 537; Id. §§ 369, 376, 378, as amd. by Laws of 1913, chap. 821.— [Rep.