
    The People ex rel. Samuel Gregg and Lambert A. Caddick, App’lts, v. The Board of Canvassers of Rensselaer County, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    1. Elections—Mandamus—Laws 1880, chap. 460.
    Although in case of two returns, one of which is false, the court may, under Laws 1880, chap. 460, compel the hoard of canvassers to canvass the true one; where there is only one return-the statute gives the court no power to interfere with its canvass upon allegations of fraud.
    S. Same.
    ■ The statute does not confer on the court authority to institute and conduct the investigation which should precede and justify an order which will nullify the return of the vote.
    Appeal from order of special term, denying application for a writ of mandamus to compel defendant to omit from -its canvass the statement of votes contained in a paper purporting to be a 41 return ” of votes cast in the Sixth ward of Troy.
    The application was made on affidavits stating that after such return was made and filed it was discovered that the inspectors had not signed each half sheet; that specimen ballots had not been annexed, and that the contents of the return as to the senate box were not truthful; that the box was stolen after the closing of the polls and before the ballots were counted and another substituted in its place.
    
      Cr. B. Wellington, for app’lts; R. A. Parmenter, for resp’t.
   Landon, J.

Chapter 460 of the Laws of 1880 extends the authority of the supreme court by mandamus to the correction of errors in the determination of boards of county canvassers. The single question presented to us under this act is whether the county canvassers have made any error in their determination respecting the returns from the election district composed of the Sixth ward of the city of Troy. The returns for the election district were duly made and signed by the inspectors and were filed in the proper office and are now before the board of county canvassers. The presumption is that they are true. Some in-formalities are alleged, but these do not call for the suppression of the returns. No other returns exist, and it does not appea-r to be possible to make any other under any authority given by statute.

The real difficulty is not in the determination of the board of county canvassers, but in an alleged criminal imposition practiced upon the board of inspectors of the election district. The affidavits submitted tend to show that the senatorial box was feloniously abstracted before the votes deposited therein were canvassed, and that another box containing senatorial ballots was substituted in its place, and that the district canvassers actually canvassed the ballots thus feloniously substituted. If there were two returns, one of the false box and one of the true, and the county canvassers had determined to canvass the false instead of the true, the court might correct such an error. People ex rel. Russell v. Canvassers of Albany County, 20 Abb. N. C., 23. The difference between giving effect to the true vote of the district and suppressing it altogether is great To suppress the vote may or may not correct the alleged error, even if the crime alleged to have been perpetrated upon the electors of the district can be called an error of the county canvassers, or the cause of one. It is probable that it would be the substitution of one error for another.

It is obvious that the act of 1880, authorizing the court to correct the errors in the determination of the board of county canvassers, does not confer upon it the authority to institute and conduct the investigation which it seems to us ought to precede and justify an order which will nullify the return of the vote of the district. The proper investigation into the alleged crime may be made by other authority, and if the crime be found, the true vote may be ascertained in a case involving the election of a senator.

The order appealed from must be affirmed.

Learned, P. J., and Fish, J., concur.  