
    PEOPLE ex rel. SANDERSON v. BOARD OF CANVASSERS OF GREENE.
    
      N. Y. Supreme Court, Third District; Special Term,
    December, 1882.
    Mandamus to County Canvassers. — Elections.—Defective Return by Inspectors.—Sending Back for Correction.
    Where there is reasonable ground to believe that the return of a board of inspectors of an election district is not accurate, a mandamus will issue requiring the board of county canvassers to remit such return to the board of inspectors for such correction as they may see fit to make.
    Such mandamus will issue although the canvass has been completed and a certificate of election granted to one who has already qualified for the office in dispute.
    It is the duty of inspectors of election to make, in their return, a true statement of the result of the election in their district, and until they have done so, their duty is undischarged. Their duty is not discharged by making a false or erroneous return, nor do they thereby become functus officio.
    
    Application by John Sanderson for a writ of peremptory mandamus directing the Board of Canvassers of Greene County to send back for correction a return of the inspectors of the first election district of the town of Hunter in said county.
    
      J. I. & F. Werner and J. B. Olney, for the relator.
    
      J. A. Griswold and G. Howard Jones, for the Board of County Canvassers.
   Westbrook, J.

This is an application for a peremptory mandamus requiring the board of county canvassers to return to the inspectors of the first election district of the town of Hunter, county of Greene, the return made by such inspectors to the board, of the result of the election held in November last, for correction. The ground of the application is, that the return which was made by such inspectors is incorrect and inaccurate, and that a mistake was made in such return in regard to the votes cast in such district for the office of county judge of the county of Greene. It will not be necessary in disposing of this application to discuss with any degree of nicety all the contested facts which are presented upon this motion, and no attempt so to do will be made. It will be sufficient to state the prominent and uncontested facts, and in connection therewith to consider the law applicable thereto.

By the return made to the Board of County Canvassers by the inspectors of election, Manly B. Mattice is therein stated to have received 170 votes for the office of county judge of the county; and the relator John Sanderson, is therein stated to have received 92 votes ; and no votes whatever are therein declared to have been given for any other person for that office. Among, the affidavits submitted on the part of the relator for the purpose of showing that such return is inaccurate and erroneous are those of Homer H. Payne, one of the inspectors of the election in such district; of Alvin S. Haines, another of such inspectors; and the affidavit of the relator, John Sanderson; the last-named individual, however, testifying not to facts within his own knowledge, but to information which he received from the third inspector, William O’Hara, and others. From such affidavits it appears that Manly B. Mattice received in such election district either 149 or 150 votes, and not 170 as contained in the return ; and that John Sanderson received 108 votes at such district poll, and not 92 as has been returned to the board of canvassers. In addition to this there were several votes cast for Eugéne Baymond, who was also a candidate for the office of county judge at such election, which votes have not been returned nor stated in the result of the canvass as made to the county canvassers.

In opposition to this motion, among other affidavits presented by the board of county canvassers, is the affidavit of Homer H. Payne, the inspector who made an affidavit for the relator, and that of Michael O’Hara, who was one of the clerks of the board in the district.

. Whilst the former gentleman undertakes to take back in part his previous sworn statement, yet it is apparent from reading over such affidavit that he does not- substantially contradict or vary the evidence contained in his previous affidavit; nor do either of the affidavits satisfy me that there has been a correct and accurate return made to the board of county canvassers of the votes cast in such district. It is not important in considering the present application to determine how great the errors are which are contained in the return as made; nor is it at all important to consider whether they are sufficient or not to change the result of the election. A careful examination of the affidavits satisfies me that there is reasonable ground to believe that the return as made from the first district of Hunter is not accurate, and the question therefore is: Shall this mandamus be granted, not for the purpose of declaring what errors exist and what corrections shall be made, but for the purpose of enabling the board of inspectors, who by their affidavits profess their willingness to reassemble and meet, so to meet and assemble, that they may determine for themselves what is the just and true vote cast in such district for the office of county judge, and thus fulfill their duty under the law?

The statutes of the State require the inspectors of election in their return to make a true statement of the result of the election held in their district, and until they have so done, their duty under the law remains undischarged. If what purports to be a return has been made, which either by mistake or design is inaccurate and erroneous, they have not, by making such erroneous statement and return, discharged their duty under the law, and therefore, as their duty is undischarged, they have not become functus officio. Only when they have complied with the statute, by making an accurate and true return of the votes cast for a particular office and the votes cast for each candidate for the office, has their duty under the law been discharged. If no return had been made, it would scarcely be doubted by any one that even at this comparatively late period of time that a return could be compelled; and if a return could be compelled, when none had been made, it is equally clear that when one has been made which is erroneous and mistaken, that a true and accurate return can be required. The failure to make a return at all is no greater violation of the law than the making of an inaccurate and a false return. It is true that a court should be careful not to needlessly cause a return to be sent back to the inspectors of an election district for correction, but it should do so, whenever the facts and circumstances proved to the satisfaction of the tribunal, show that a mistake has in fact been made. That such a case is presented upon the papers used upon this motion seems clear, and without any detailed statement of the errors which have been made to appear, it is sufficient to say that upon all the evidence submitted, as well upon the part of the relator as upon the part of the board of county canvassers, there has not been made to the board of county canvassers a return of the result of the election district which is accurate and exact in every particular. Not only does such return fail accurately to state the votes cast for Mattioe and for Sanderson, but it also fails to state the votes which were cast for Raymond. From all the proofs submitted it is clear that votes for Raymond must have been cast. It is no answer to this statement to say that a return upon i hat point is unnecessary, because it cannot change or alter the result. Whether the result is altered or not, the law is uncomplied with, for that requires a correct statement of the votes cast for each and every candidate for the office, which confessedly has not been done. There is, therefore, so far as I can see, no reason why such return should not be sent back to the board of inspectors for correction in those respects and particulars in which it is erroneous, defective, or • not sufficiently full.

It is argued, however, by the board of county canvassers in opposition to this motion that no practical result can be attained by sending the returns back for correction, because the canvass for the office of county judge was completed at the time the notice of this motion was served, and a certificate granted to Manly B. Mattice, who has already qualified for the office of county judge. It would be important to consider this position, if the question was now before the court as to the result and effect of the alleged canvass,—the granting of the certificate, and the qualification of the officer. But that question is not before me. No opinion is expressed upon the effect of an amended return, even though when amended it should be in accordance with the facts as claimed by the relator. The court is not now dealing with the question of the ultimate result, but only with the duty of the inspectors of election. It being clear from the papers that the return from such election district is erroneous, and thus that the law has not been complied with by such inspectors, it follows, that the return must be seiit back to such inspectors for correction.

For the reasons which have been stated, a mandamus must issue, to the board tif county canvassers requiring them to remit and to return to the board of inspectors of the first election district of the town of Hunter the return for such correction as they may see fit to make.

The respondents subsequently appealed from the order entered on the above decision, and moved by order to show cause for a stay of proceedings until the hearing and determination of such appeal.

J. I. Werner and James B. Olney, for relator.

John A. Griswold, for respondents.

Osborn, J.

[After reciting the proceedings and the nature of the application.]—The position in which I am placed is both unpleasant and embarrassing. I declined in the first instance to take any action when the question was presented by the relator’s counsel, from the peculiar personal relations I sustained to one or both of the parties particularly interested, viz.: the rival candidates, and requested that such application should be made to Judge Westbbook. He lias now acted, granted the writ of mandamus, and I am now urged to nullify Ms action by staying proceedings thereon. This I do not think I ought to do unless his action was clearly wrong, and his order and the writ upon it wholly unauthorized and void. I have examined with as much care as time would allow, the various sections of the Code [of Civil Procedure] to which I have been referred, and particularly section 3070, "and have given due consideration to the very able and exhaustive argument of the learned counsel for the board of canvassers, and I am unable to reach a conclusion that my learned associate had not the power to grant the writ he did. Section 3070 of the Code prescribes that: “A peremptory writ of mandamus may be issued in the first instance where the applicants right to the mandamus depends only upon questions of law,” &c. It is claimed that the affidavits present questions of fact which make it improper for a peremptory writ to issue in the first instance. It will be noticed, however that while these affidavits are not. in harmony as to the number of votes given for the several candidates, one thing is clear and certain, that is, that the returns as originally made and filed do not give a full and correct return of the votes given for the various persons running for the office of county judge. The affidavit of O’Hara, clerk of the inspectors, to which I have been specially referred, does not. seem to contain a direct denial in fact of all the errors alleged and appearing by the moving papers.

The writ does not assume to direct that a return shall be made in any particular manner or form, but simply that it shall be a true return, and this without any reference to its effect upon the final result. It may not, very likely will not, change the result in any manner. As I have stated, a stay pending the appeal practically nullifies the order and the writ under it. It is unlike an ordinary appeal from a judgment directing the payment of money or any usual appeal, where such security may be required as to prevent any possible injustice. The order of Justice Westbrook was made after a full argument, and many days given for deliberation. His reasons for the action taken by him are given in a carefully prepared opinion. To nullify it now would be to establish a most disgraceful practice among judges of co-equal power and jurisdiction which years ago existed to some extent, and which brought the administration of justice into ridicule and contempt.

It is urged that if after the result of an election is declared, and a certificate awarded in due form, partisan inspectors may be allowed to assert that there has been a mistake in the returns as originally made by them and by an attempted amended or corrected return, produce a different result, no person running for an office would be safe, whose election should be declared by a small majority. But the question is not now before me, nor was it before my associate, what effect shall be given to any return which may be hereafter made by the inspectors. The court would probably hesitate a long time before declaring that a board of canvassers should nullify the certificate which had been granted by them, upon returns apparently fair upon their face, certified and sworn to according to law because a different return might be made at this late day, and especially when the affidavits made by the inspectors are inconsistent and contradictory. But it is unnecessary to pre-judge or consider any such question. Should such an emergency arise doubtless appropriate action would be taken by the court to preserve the rights of all parties interested.

For the reasons thus hurriedly stated it seems to me that the order staying proceedings pending the appeal should be vacated and set aside without prejudice to an application to Justice Westbrook to grant the same if desired. And also that that portion of the order extending the time for the board of canvassers of Greene' county to make return and report of its proceedings under the order of Justice Westbrook dated December 15, 1882, be so far modified as that such return and report shall be made to him on the 27th inst. at his said chambers at the opening of court on that day or as soon thereafter as counsel can be heard, instead of on December 30, as fixed by the order heretofore made by me.

No costs are allowed.  