
    In the Matter of the Application of The People ex rel. Franklin D. Sherwood, Resp’t, v. Frank Rice, as Secretary of State, App’lt.
    
      (Court of Appeals,
    
    
      Filed December 29, 1891.)
    
    Elections—Mandamus.
    Although the state hoard of canvassers have no right to consider any affidavits or papers other than the certified copies of the statements made by the hoards of county canvassers, yet a- writ of peremptory mandamus should not be issued to the Secretary of State requiring him to return said papers to the county canvassers and forbidding him from laying them before the state board.
    Appeal from order of the supreme court, general term, fourth department, affirming order for a peremptory mandamus commanding the secretary of state to return certain resolutions transmitted to him with the returns from Steuben county.
    
      Delos McCurdy and I. H. Maynard, Dep. Atty. Gen’l, for app’lt; Wm. A. Sutherland, Matthew Hale and Joseph H. Choate, for resp’t.
   Earl, J.

In this case the following order for a peremptory mandamus was made at a special term of the supreme court, and affirmed at the general term:

“ It is ordered that a writ of peremptory mandamus issue out of and under the seal of this court requiring the said Frank Rice as secretary of state forthwith to return to the board of canvassers of the county of Steuben, or to the county clerk of said county of Steuben, the copy of a resolution passed by said board November 10, 1891, and by said board of county canvassers transmitted to said secretary of state, together with the protest, affidavits, certificates and proofs therein referred to, now on file or in the possession of the said Frank Rice, as secretary of state, or to cancel the same of record ; and requiring the said Frank Rice, as secretary of state, to abstain and refrain from permitting the said papers hereinbefore referred to as sent to said secretary by the chairman of the board of canvassers of Steuben county, to be brought before the state board of canvassers for their consideration, and from placing before the said board any papers, certifioates, resolution, affidavit or proof, other than the certified copies of the statements made by the said boards of county canvassers of the counties of Steuben, Chemung and Allegany, respectively, in accordance with the statute.”

This is an extraordinary order. What possible official duty did the secretary of state have to return to the county of Steuben the papers mentioned in the order? They did not belong to 234the county canvassers or the county clerk of Steuben county, and were not official papers. And what right did the relator have that they should be returned ? The secretary of state miglyt burn or otherwise destroy them without violating the rights of any person. While the state board of canvassers have no right to consider these papers or to act upon them, what possible harm could be done by bringing them before the board ? It is true, as we have held, that the board have no right to consider these papers. But what official duty does the secretary of state violate when he places papers sent to him for that purpose before the board and permits them to look into them ? And what official duty do the members of the board violate if they look into the papers, and even consider them, • and then disregard them uninfluenced by their contents as in duty bound ? It is possible and quite probable that a mandamus issued in pursuance of this order, would do no harm. But as it can accomplish no useful purpose and could be issued only to compel the discharge of official duty, for fear that it may form a precedent, I think the orders of the general and special terms should be reversed, and the application for a mandamus denied.

All concur; Andrews and Finch, JJ., in result.  