
    In the Matter of the Application of Henry T. Noyes for a Mandamus to The Board of Canvassers of Chemung County.
    
      (Supreme Court, Special Term, Chemung County,
    
    
      Filed November, 1890.)
    
    1. Elections—Canvass oe votes.
    The official statement made by the inspectors after the proclamation of the result of the canvass and certified by them is the basis of the estimate of the board of canvassers rather than the sample ballots attached thereto.
    8. Same—Returns.
    After the adjournment of the board of inspectors on election night, they having made and certified the statement required by law, their functions are at an end, and they have no power thereafter to alter the statement or attach the sample ballots.
    3. Same—Omissions.
    A failure to attach the sample ballots is not such an omission as will authorize the board of canvassers to return the.statement for correction.
    4. Same—Mandamus.
    The board of canvassers acts ministerially only and the court has a clear right to direct its ministerial action by mandamus requiring it to estimate a particular return or statement.
    In certain election districts in the city of Elmira the board of inspectors did not at the meeting following the closing of the poll attach to their statement or return the sample ballots with the endorsement required by law. These returns, thus defective, the county clerk refused to receive, whereupon the next day as many of the inspectors and supervisors of election as could be found came together and took 'the ballots, which they had preserved, and attached to their returns sample ballots, with endorsements of each kind cast. This state of facts applies to all the cases in question upon this motion except two districts. In one district of the fifth ward the sample ballots were attached to the statement or return upon election night. In all the cases except one upon which question is made in this motion, the number of votes cast for member of congress, as appears upon the sample ballots with their endorsements, differs materially fsom that appearing upon the face of the statement which had been made and signed by the inspectors. The board of canvassers in those cases estimated the vote of the county from these sample ballots attached to the return, with their endorsements, disregarding the vote as it appeared upon the face of the statement. In one district, however, where after the closing of the poll the return or statement had been made and signed by the inspectors, upon the refusal of the county clerk to accept the same, a new statement was made out and sample ballots attached upon the next day after election by a part only of the inspectors. The vote cast for member of congress appeared in that new statement corresponding with the sample ballots attached thereto and their endorsements, differing, however, from the number of votes appearing upon the face of the original statement as cast for representative in congress. The board of canvassers estimated the vote of the county upon this second statement made the day succeeding election. The first statement was not before the said board, and was not on file with the county clerk at the time of their canvass, but has since been filed. Further facts appear in the opinion.
    Robertson, Smith & Bull {A. J. Robertson and W. A. Sutherland, of counsel), for petitioner; John B. Stanchfield, for resp’ts.
   Smith, J.

The petitioner prays for a peremptory writ of mandamus to the board of canvassers of Chemung county, directing them to re-convene and re-estimate the vote of the county upon candidate for representative in congress. He alleges that the said board erroneously estimated said vote from the sample ballots attached to the statement, with the endorsements thereon of the number cast, and disregarded the original statement of votes made by the board of inspectors; and that this occurred in six election districts in the city of Elmira. Unless the petitioner shows his right to this writ upon the conceded facts, the motion for a peremptory writ must be denied and an alternative writ granted for the determination of any disputed fact

It is conceded here that in each one of the six districts, immediately at the close of the polls, the votes were counted by the inspectors, the result was officially announced and a statement of the vote cast, and for whom, was made and was signed by the inspectors before the adjournment of the board.

The claim of the petitioner is that this constituted the official statement from which the board of canvassers was required by law to estimate the vote of the county; and that the said board, having failed to estimate the said vote upon said statement, has committed an error, the correction of which the court will direct by mandamus.

The respondents contend, however, that'the sample ballots attached to the statement, with the endorsement thereon of the number of each kind voted, are better evidence of the vote of the district, and that they form part of the statement which by law is made the basis of their estimate, and that they of right estimated the vote thereupon.

Chapter 130 of the Laws of 1842 prescribes that the board of supervisors of the county shall be the canvassing board of the county. By § 6 of tit. 5 of the same act it is provided: “ The original statements of the canvass in each district shall then be produced, and from them the board shall proceed to estimate the votes of the county, and shall make such statement thereof as the nature of the election shall require.” This original statement is the statement made by the board of inspectors immediately succeeding the closing of the poll See § 48, tit. 4, of said act.

The form of the statement is specifically prescribed by § 44 of title 4 of said act, as follows: The statements to be made by the inspectors shall contain a caption, stating the day on which and the number of the district, the town or ward, and the county at which the election was held in relation to which such statement shall be made; it shall also contain a statement showing the whole number of ballots taken for each person, designating the office for which they are given, which statement shall be written in words at length; and at the end thereof a certificate that such statement is correct in all respects; which certificate shall be subscribed by the inspectors.”

By § 42 of title 4 of the same act, it is provided that the inspectors shall attach to the statement sample ballots of each kind voted with an endorsement, written partly thereupon and partly upon the paper to which the sample ballot is attached, stating the number of each kind voted. There is no requirement of law that this endorsement upon the sample ballot shall be certified as correct, nor that it shall be over the signatures of the inspectors nor that it shall form any part of the statement itself from which by express provision of the law the board, of canvassers must estimate the vote of the county.

The vote as entered in the statement is made after the canvass and upon proclamation by the chairman of the board of the result of such canvass. See § 3, chap. 513, Laws of 1855, as modified by chap. 79, Laws of 1856, and chap. 712, Laws of 1871.

It is clearly the intention of the statute that this official statement made after and in accordance with the proclamation of the result of the canvass, which is required to be certified to as correct over the signatures of the inspectors, shall form the basis of the estimate of the board of canvassers, rather than the sample ballots attached to the statement with the endorsement thereupon which is not required to be certified as.correct, and to which the board of inspectors are not required to subscribe.

When the board of canvassers of Chemung county, therefore, assumed to estimate the vote of the county from the sample ballots with their endorsements, in disregard of the face of the statement, which was over the official signature of the inspectors, they proceeded in violation of law and the court is properly asked to direct them to correct their error and to estimate the vote from the legal statement which has been certified by the board of inspectors.

This rule of law disposes of all the questions presented in the petition. In the second district of the first ward the statement made upon the night of election and certified to by the inspectors is the only legal statement of the vote there cast. The making up of new returns upon the day after election, and the attaching of the sample ballots thereafter to the statement made upon election night, is clearly without warrant of law.

By § 31 of chapter 262 of the Laws of 1890, the inspectors are required, “ immediately after the final closing of the poll,” to open and canvass the votes cast at said election. By § 35, title 4, of chapter 130 of the Laws of 1842, such canvass shall be public, and shall not be adjourned or postponed until it shall have been fully completed. After the adjournment of the board of inspectors upon election night, they having made and certified and signed the statement which the law requires, their functions were at an end. Thereafter they had no power whatever to alter that statement or to add thereto or to attach the sample ballots.

By § 278 of the Election Code, 1 R. S., 8th ed., 423, it is provided, “ If, upon proceeding to canvass the votes, it shall clearly appear to the canvassers that in any statement produced to them certain matters are omitted in such statement, which should have-been inserted, or that any mistakes which are clerical merely exist, they shall cause the said statement to be sent by one of their number to the town or ward inspectors, * * * to have the same corrected.” The omission or clerical error, however, intended by this statute is only one appearing upon the face of the statement and interfering with the estimate by the board of canvassers of the vote of the county. The failure to attach the sample ballots-is not such an omission as will authorize the board of canvassers-to return the statement to the board of inspectors. The policy of the law is to make final the action of the board at its meeting immediately following the closing of the poll.

Justice Landon, in People ex rel. Russell v. Board of Canvassers, 46 Hun, 390, says : “ The law contemplates that the duties of inspectors shall in these respects be as promptly performed as possible ; for this purpose, among others, that the result may be determined and declared without any bias arising from the knowledge of its effect upon the aggregate result or from exposure to subsequent influences. Like the verdict of a jury, when once regularly delivered, the jurors themselves cannot overthrow or defeat it.” Although the original statement in the second district of the first ward was not before the canvassing board when the canvass was made, the board may, nevertheless, now be directed to estimate its vote therefrom. See People ex rel. Russell v. Board of Canvassers, supra.

The respondents further object that the court cannot direct the board to estimate any particular return or statement That is the true rule where the body acts judicially. Where, ho.wever, as here, the body acts ministerially only, the court has the clear right to direct its ministerial action. The power to estimate mentioned in the statute is simply the power to count. See People ex rel. Russell v. Board of Canvassers, supra; People ex. rel. Noyes v. Board of Canvassers of Seneca County, opinion of Justice Davy, 34 N. Y. State Rep., 8.

Assuming, then, all the allegations in the respondents’ affidavits to be true, the petitioner still has the right to the relief he asks. The board of inspectors cannot be heard now to say that their statement made upon election night was incorrect.

If there be power to go behind that statement and prove error therein, that power rests with congress and not with the board of canvassers or with the court The law directs that the board of canvassers shall estimate the vote upon that statement made, and it is for the enforcement of that law that the mandamus of the court is properly invoked.  