
    The People ex rel. Henry T. Noyes v. The Board of Canvassers of Seneca Co.
    
      (Supreme Court, Special Term, Monroe Couuty,
    
    
      Filed December 1, 1890.)
    
    Elections—Canvass on bettjkns.
    The board of county canvassers has no power to estimate the votes from the sample ballots attached to the returns. It is its duty to count the votes appearing upon the face of the returns, if such returns appear to bo regular, and if they are not regular they should be aeturned for correction.
    Motion for peremptory writ of mandamus.
    
    
      William A. Sutherland, for relator; John B. Stanch field and George Baines, for resp’ts.
   Davy, J.

This is an application for a peremptory writ of mandamus requiring the board of county canvassers of Seneca county to reconvene and to correct certain- errors committed by them in counting the votes for representative in congress, cast at the last general election in the first and second election districts of the town of Seneca Falls.

It is admitted by the respondents that the board of canvassers made their estimate of the number of votes cast for representative in congress in the first and second districts referred to from the sample ballots attached to the inspectors’ certificates instead of from the face of the returns.

It appears from the affidavits of some of the inspectors of election in those districts that the face of the election returns contain a correct statement of the number of the votes cast for representative in congress, and that the sample ballots attached to the inspectors’ certificates do not contain a correct statement. These facts are not denied by the respondents.

It was the duty of the board of canvassers to count the votes that appeared upon the face of the returns, providing the returns were regular upon their faces, and if they were not regular the board should have returned them to the inspectors for correction. The People ex rel. Deuchler v. The Board of Canvassers of Wayne County, 64 How. Pr., 337; Felt’s case, 11 Abb., N. S., 207 ; People v. Cook, 4 Selden, 67.

It is plain, therefore, that the board of canvassers committed an error in disregarding the face of the returns and in estimating the votes from the sample ballots attached to the inspectors’ returns.

Chapter 460 of the Laws of 1880 authorizes the supreme court, in proceedings by writ of mandamus, to correct errors in the determination of boards of county canvassers whenever it shall appear, by affidavit, that errors have occurred in their determination, and the court may, by order, require said board to correct such errors, and if such board shall have made its determination and dissolved, it may be reconvened for the purpose of making such, corrections as the court shall order.

It appearing clearly from the affidavits read upon this motion that an error has been committed by the board of canvassers of said county, it is therefore the duty of the court, under the provisions of said act, to direct that said board be reconvened for the purpose of correcting said errors.

A peremptory writ of mandamus must, therefore, be granted requiring the board of county canvassers of Seneca county forthwith to reconvene and to estimate the votes given for representative in congress in the first and second districts of the town of Seneca Falls, in the words and figures appearing upon the face of the original returns of the inspectors of election, and that said board forward to the secretary of state a certificate containing the result of such re-canvass.  