
    The People of the State of New York ex rel. Philip Borgia, Appellant, v. John Doe and Others, Said Names Being Fictitious, etc., Inspectors of Election of the Twenty-sixth Election District of the Eighteenth Assembly District in the County of New York, and Said Persons Constituting the Board of Inspectors of Elections of the Above-named Election District, Respondents.
    First Department,
    December, 1905.
    Election Law — inspectors of election cannot refuse vote- of qualified voter, though his name has already been voted on — mandamus lies to. compel reception of vote.
    Inspectors of -election have no right to refuse to allow a duly qualified and registered elector to vote, solely because some other person bad previously voted on bis name. Such refusal is a violation of the voter’s constitutional right under the Ifew York State Constitution (Art. 1, § 1, and art. 2, § 4)..
    Inspectors act .ministerially only, and have no powers except those given by ' statute., ' _
    Mandamus is the proper remedy to compel inspectors to receive the vote of an elector.
    Appeal ' by the relator, Philip Borgia, from án' order of the Supreme.Court, made at the New York-Special Term and entered in the office of the clerk of. the county of New York on the 7th day of November, 1905.
    
      A. S. Gilbert, for the appellant.
    
      H. Snowden Marshall, for the respondents.
   McLaughlin, J.:

At a general election held November 7, 1905, the relator was denied the right to vote by the board of inspectors of the twenty-sixth election district of the eighteenth assembly district of the city of New York, and he thereupon applied to the Special Term of this court for a peremptory writ of mandamus to compel such board to permit him to vote. His application was based upon an affidavit made by himself, which showed that he was a naturalized citizen of the United States over twenty-one years of age; that he was naturalized more than ninety days prior to November 7,1905; that he had resided-in the State of New York more than one year prior to the general election held on that date; that for four months immediately preceding such time he had resided in the county of New York, and for the last thirty days in the twenty-sixth election district of the eighteenth assembly district; that on one of the registration days provided for by law in the year 1905 he duly presented him-_ self before the respondents, composing such board, and his name was duly registered as an elector qualified -to vote in such district at the general election held on November 7, 1905; that on such election day he appeared before the respondents, composing such board, for' the purpose of voting; that they refused to permit him to vote, on the ground that some one else had previously thereto voted on his name. /

The facts set out in the affidavit were not controverted in any way. Notwithstanding that fact, the court at Special Term denied the application for the writ, and the relator has appealed.

The question presented is of so much importance that, we think, it should be considered and determined upon the merits (Matter of Fairchild, 151 N. Y. 359), notwithstanding such determination can, so far as the relator is concerned (the election having passed), ccomplish no purpose except to prevent others being similarly eprived of their right to vote.

The relator,- upon the conceded facts, had á right to vote, Nevertheless he was prevented from .doing so simply because some one else had fraudulently voted in his place. Section 1 of article 1 of the Constitution provides that no. member of the State shall .be disfranchised or deprived of any of the. rights Or privileges secured to arty citizen thereof, unless by the law of the -land or the judgment .of his peers. This provision of the Constitution was violated, as well as another provision, which provides that “every male citizen of the age of twenty-one .years who shall have been a citizen for ninety days and an inhabitant of' this State one year next preceding an election and for the last, four months a resident of the county and for the last thirty days a resident of the election district in which he may' offer his vote shall be entitled to' vote at such election in the election district of which.he shall, at the time, be a resident.” (Const, art. 2, § 1.) The Constitution further provides, in section 4 of' article 2, for the registration of voters,- which registration shall be completed at least ten days before the election. In pursuance of this section of the Constitution, chapter 909 of the Laws of 1896 was passed, which,, as amended, among other things, provides the method for registration of voters in the city of New York..

The relator wás duly, registered; he was legally qualified to vote; nevertheless, he was prevented from doing so, hot by the law of the land Or the judgment of his .peers, but -by. the simple fiat of the board of election inspectors. Argument. is unnecessary to demonstrate that the board 'Of ■ election inspectors possesses no. such power; because if it did elections would be little less than a farce, inasmuch as the power to determine who should vote would rest with sizch board. The inspectors of elections act only ministerially. They have no -power except such as isjionf erred upon them by statute, and when a person legally qualified offers to vote they must receive his Vote-. If’ it is asserted that he is not qualified to vote, then the only Way to prevent his doing so is to challenge it (Election Law [Laws óf 1896, chap. 909], § 108, subd. 1, as amd. by Laws of’1901, chap. 544), and in that case, if the challenge is not withdrawn and the Would-be Voter insists upon liis right to vote, and: is willing to take the general bath prescribed by statute (Laws of .1896, chap. 909, §, 108, suba. 2), his vote must be received: (People ex rel. Smith v, Pease 27 N. Y. 45; Goetcheus v. Matthemon, 61 id. 420 ; People ex rel. Stapleton v. Bell, 119 id. 175; People ex rel. Sherwood v.. Board of Canvassers, 129 id, 360; People v. Canvassers, 76 App. Div. 25.)

Even an arrest at the polls cannot deprive one of the right to vote. He must be afforded the privilege of voting before he is removed from the polling place (Election Law, § 15), and any person who willfully and unlawfully obstructs, hinders or delays or aids or assists in obstructing or delaying any elector on his way to a registration or polling place, or while he is attempting to register or vote, * * *• ]s guilty of a misdemeanor.” (Penal Code, § 41k.) The whole policy of the State now is, and ever since its organization has been, to accord to every qualified elector the fullest and freest opportunity to vote, and of this opportunity he cannot be deprived on election day, because the board of inspectors has permitted another person to wrb/igfully and unlawfully impersonate him before he offers his vote. If another person has voted on his name, he may, nevertheless, vote and the inspectors must receive his ballot, notwithstanding the wrong previously committed by another.

The Court of Appeals, recognizing this right on the part of an elector in Goetcheus v. Matthewson (supra), said: “ The law of Hew York, wisely as we think, has largely left the right to vote, as far as the proceedings on election day are concerned, to the judgment and conscience of the elector. Most of the questions that may tend to excite a momentary irritation caused by the challenge are disposed of for the time being by his oath. If he wilfully swears falsely he is liable, on conviction, to a -suitable' punishment. If he is disqualified from voting, the error may be rectified, so far as it occasions harm, by an appropriate judicial proceeding.”

And further commenting upon it in People ex rel. Stapleton v. Bell (supra) the same court said : If a person claiming the right to cast his ballot shows himself to be.qualified to do so by the application of statutory tests, he should not be deprived of that right by any action of the authorities, State or local. Ample means are provided for holding him for punishment, if believed and charged to be, guilty of a violation of the law, and ample means exist.' for the ’edification of the result affected by his acts.”

If one could be deprived of the right to vote, as the relator here was, then the policy of the law is destroyed and the statutes which have been passed to safeguard the elector’s right to. vote serve no purpose whatever.- ‘

But it is said a writ of mandamus was not the proper remedy. If. invoked which would have secured to' him the right-guaran' the Constitution. We think it was the proper remedy and thii of law of competent jurisdiction in the' name of the State ereign, directed to some inferior court, officer, corporation or requiring them to do some particular thing therein specified appertains to their office or duty. (19 Am. & Eng. Ency. of Law [2d ed.], 716.) And it will lie whenever ■ a party lias a clei right to demand the performance of a specific duty and 'then other adequate remedy. (19 Am. & Eng. Ency. of Law [5 725, and cases cited.) Here the relator had a constitutional right to vote and it \ duty of the board of inspectors to recognize that right and him to do so. The fact that some on.e else had voted upon h was of no importance when he himself offered to vote. 1 then remained for the inspectors to do was to satisfy themselv he was' a qualified elector and had' been properly and legallj tered. These facts were not denied, and, therefore, the respe in refusing to permit the relator to vote deprived him unlaw: his constitutional right of franchise, They violated the dut) was placed upon .them.by the statute, and the only way the could protect his rights and compel them to perform the duty ‘Upon them was by writ of mandamus. The writ shoul issued, and for that reason the court erred'in denying the i application. ' ' ' ■ not, it is difficult to imagine -.what remedy the relator cou " seem to follow when the nature of. the writ is considered, of mandamus has been defined to be a command issuing from

The order appealed from "must, therefore, be reversed, ant issuance of the writ would accomplish no purpose, election d ing passed, we do not direct that it issue. ' ■

O’Bbien, P. J., Ingraham, Laughlin and Houghton, concurred.

■ Order reversed. "  