
    NEWCOMB v. LEART, State Superintendent of Elections, et al.
    (Supreme Court, Appellate Division, First Department.
    October 27, 1908.)
    1. Elections (§ 208*)—Conduct of Elections—“Closing of Polls”—Delivery of Ballots—Statutory Provisions.
    *For other oases see same topic & § number in Dec. & Am. Digs. 1907 to date, &'Rep’r Indexes
    Election Law (Laws 1896, p. 894, c. 909) § 3, as amended by Laws 1901, p. 1668, c. 654, provides that the polls shall be opened at 6 o’clock in the forenoon and shall close at 5 o’clock in the afternoon, that the closing of the polls shall mean the close of delivery of official ballots to electors, and that electors who have lawfully begun the act of voting before the time fixed for the close of the polls shall be allowed to complete the act. Section 104, subd. 1 (Laws 1896, p. 953, c. 909), provides that while the polls are open electors may enter within the guard rail at the polling place for the purpose of voting and shall proceed to the inspectors and give their names. Section 106 (page 956) provides that an elector who has received a ballot as provided by section 104 is entitled then and there to vote and shall be deemed to have commenced the act of voting. Held, that the delivery of the ballot to electors is limited to those who enter within the guard rail while the polls are open, and at 5 o’clock the delivery of official ballots to electors must cease, and no elector to whom a ballot has not been delivered before that time can be allowed to vote.
    [Ed. Note.—For other cases, see Elections, Cent. Dig. § 184; Dee. Dig. § 208.*]
    2. Elections (§ 208*)—Statutory Provisions—Mandatory or Directory.
    Whether the provision as to the time for closing the polls be mandatory or directory is immaterial; the election officers being as much bound to obey a direction as a mandate.
    [Ed. Note.—For other cases, see Elections, Cent. Dig. § 184; Dec. Dig. § 208.*]
    Submission, under Code Civ. Proc. § 1279, of controversy between Josiah T. Newcomb and William Leary, as state superintendent of elections for the Metropolitan elections district, and others.
    Dismissed.
    Argued before PATTERSON, P. J., and INGRAHAM, CLARKE, HOUGHTON, and SCOTT, JJ.
    Theodore Connoly and Daniel F. Cohalan, for plaintiff.
    James A. Donnelly, Deputy Atty. Gen., for defendants.
   PER CURIAM.

The- question submitted for determination on this . application is as to the interpretation of the election law respecting the time for the closing of the polls. The determination of this question depends, upon, the construction of sections 3, 104, and 106 of the election law (chapter 909, pp. 894, 953, 956, Laws 1896). Section 3 of that act (as amended by chapter 654, p. 1668, Laws 1901) provides:

“The polls of every general election * * * shall be opened at six o’clock in the forenoon and shall close at five o’clock in the afternoon. There shall be ’ no adjournment or intermission until the polls are closed. The closing of the polls shall be deemed to mean the close of the delivery of official ballots to electors, and the electors entitled to vote who have lawfully begun the act of voting before the time fixed for the close of the polls, shall be allowed to complete the act.”

Subdivision 1 of section 104 (Laws 1896, p. 953, c. 909), provides:

“While the polls oí the election are open, the elector’s entitled to vote and who have not previously voted thereat, may enter within the guard rail at the polling place oí such election for the purpose of voting, * * * and shall forthwith proceed to the inspectors and give his name.”

The delivery of the ballot to electors is therefore limited to an elector who enters within the guard rail while the polls of election are open. By section 106 the elector who has received a ballot as provided for by section 104 is entitled then and there to vote, and—

“when a person shall have received an official ballot from the ballot clerk or inspector as hereinbefore provided he shall be deemed to have commenced the act of voting.”

We think there can be no question about the intention of the Legislature. The polls are .to close at 5 o’clock. The closing of the polls should be deemed to mean the close of the delivery of official ballots to electors. Therefore at 5 o’clock the delivery of official ballots to electors must cease, and no elector to whom an official ballot has not been delivered before 5 o’clock can be allowed to vote. This provision seems to be mandatory; but whether it is or not is immaterial upon this application- The election officers are as much bound to obey a direction as a mandate.

As the closing of the polls is fixed by section 3 of the act at 5 o’clock in the afternoon, no elector can receive an official ballot after that time.

It follows that the proceedings must be dismissed.  