1918.]

Opinion, per COLLIN, J.

(225 N. Y.]

of the courts to review the action of election officials. (Const. of N. Y. art. II, § 6; Hearst v. Woelper, 183 N. Y. 274; Metz v. Maddox, 189 N. Y. 460; Tamney v. Atkins, 209 N. Y. 202; 2 High on Injunctions [4th ed.], § 1312; Code Civ. Pro. §§ 1983, 1948; Matter of Holle, 160 App. Div. 369.) The moving papers are wholly deficient to sustain the issuance of a writ of mandamus. The only allegation of possibly material fact as to the void, blank and protested ballots is on information and belief with no statement of source of information or ground of belief. (People ex rel. Karns v. Potter, 176 App. Div. 330; People ex rel. Brown v. Freisch, 215 N. Y. 356; Saxe's Manual of Elections [Ed. of 1918], 227; People ex rel. Watkins v. Board of Canvassers, 25 Misc. Rep. 444; Matter of Ordway, 118 App. Div. 386; People ex rel. McLoughlin v. Ammerwerth, 197 N. Y. 340; 2 Fiero on Special Proceedings [3d ed.], 1177, 1444; People ex rel. O'Brien v. Kruger, 12 App. Div. 536; People ex rel. Corrigan v. Mayor, etc., 149 N. Y. 223.) There is no proof whatever of any injury to the relator requiring remedy by issuance of a writ of mandamus. (People ex rel. Perry v. Bd. of Canvassers, 88 App. Div. 185; 2 Fiero on Special Proceedings [3d ed.], 1356; People ex rel. Larkin v. Palmer, 27 Misc. Rep. 569; Matter of Coughlin, 198 N. Y. 613; 137 App. Div. 283.)

A. S. Gilbert and Emil E. Fuchs for respondent. The order appealed from is not reviewable by this court. It is not a final order. If it be a final order it unanimously affirmed the order made at Special Term without modification within the meaning of section 191 of the Code of Civil Procedure. (People ex rel. Feeny v. Board of Canvassers, 156 N. Y. 36.)

COLLIN, J. Charles S. Whitman, the respondent, instituted this proceeding by presenting, under an order to show cause, to the Special Term of the Supreme Court

[225 N. Y.]

Opinion, per COLLIN, J.

[Dec.,

on November 25, 1918, an affidavit made by him. It stated, in effect: He was the candidate of the Republican party for the office of governor of this state at the general election of November 5, 1918; Alfred E. Smith was the candidate of the Democratic party for that office and other named persons were the like candidates of other named parties. In pursuance of the provisions of the Election Law inspectors of election in the various election districts in the county of Richmond made and filed statements of the results. It proceeded:

That, as more particularly appears from the original statements of the result of the canvass filed by the Inspectors of Elections in the various Election Districts in the County above named with the Clerk of said County, certain of the ballots counted by such Inspectors were protested, or were canvassed as wholly blank or void. That a detailed statement of the number of such ballots protested or declared to be wholly blank or void as returned by said Inspectors, and as more fully appears from the original of said return on file in the office of the Clerk of the County above named, is set forth on Schedule A, hereto annexed, which is hereby made a part of this application as if here in full set forth. That deponent is informed and believes that a number of said ballots declared void were so declared because voters made their marks in the voting spaces opposite both the Republican and Prohibition emblems, and were valid. It is impossible for deponent to give any more definite information on this subject, because he has not yet succeeded, owing to the opposition by Alfred E. Smith, in examining said ballots under Section 374 of the Election Law, and it will be impossible to have such examination and make this application in the time required by statute."

It stated further in effect: The result of the election, as certified by the various inspectors of election, is about

1918.]

Opinion, per COLLIN, J.

[225 N. Y.]

to be, or has been, or is in the process of being canvassed by the county canvassers in pursuance to the provisions of the Election Law and in order that their certificate shall be correct it is necessary that a judicial review of the ballots returned as wholly blank, protested and void be had under section 381 of the Election Law. It proceeded: "Wherefore, your deponent prays that a writ of mandamus issue pursuant to the provisions of Section 381 of the Election Law, requiring the Board of County Canvassers of the County above named to recanvass the said ballots returned as wholly blank, void or protested. That in order that a proper writ issue this Court direct the said ballots returned as wholly blank, void and protested to be brought before this Court and judicially passed upon. That the peremptory writ of mandamus thereupon issue in proper form directing the Board of County Canvassers to deduct from the total any ballots counted for any candidate for Governor which shall be found to be void and adding to said total any ballots cast for any candidate for Governor declared to be void by the Inspectors of Election, but found by this Court to be valid ballots, and likewise adding to the total any ballot cast for any candidate held by the Inspectors to be wholly blank which this Court shall find to have been a legal ballot cast for any candidate for Governor."

Schedule A annexed to it stated the number of void and the number of blank ballots in each election district in the county of Richmond. The aggregate number of the former was one hundred and seventy and of the latter two hundred and fifty-eight.

The application so made was opposed by the argument of counsel. The Special Term ordered: "That the said motion be, and the same hereby is granted, and it is further ordered, that the application of Alfred E. Smith to vacate the stay contained in said order against the

[225 N. Y.]

Opinion, per COLLIN, J.

[Dec.,

Board of County Canvassers of the County of Richmond be denied; and it is further ordered, that the canvass applied for by the said Charles S. Whitman be begun before this Court at 10 A. M. on November 26th, 1918."

Upon the appeal of Alfred E. Smith, the Appellate Division made the order: "The order of the Special Term of the Supreme Court, held in and for the County of Richmond, at the Court House at St. George, Staten Island, N. Y., on the 25th day of November, 1918, and granted on said day, is hereby modified so as to read as follows: Ordered, that the said motion of Charles S. Whitman for a judicial review of the ballots cast be granted, and it is further ordered, that the Clerk of the County of Richmond produce the packages containing the protested, void and blank ballots at the special term of the Supreme Court for Richmond County at 10 A. M. on Monday, December 2, 1918, where these proceedings are pending. That upon the result of such judicial review a writ of mandamus may issue to the County Canvassers as the Special Term may direct. Upon consent of applicant's counsel in open court, the present stay against the County Canvassers is vacated without prejudice to any further application therefor, should it become necessary. And as thus modified the order appealed from is affirmed, without costs. For the purpose of this proceeding, Mr. Justice FAWCETT is hereby assigned to the Special Term of Richmond County from and after December 2nd, 1918, at 10 A. M., until such proceedings shall be completed."

Section 381 of the Election Law (Cons. Laws, chapter 17) is: "Judicial Investigation of Ballots. If any statement of the result of the canvass in an election district shall show that any of the ballots counted at an election therein were protested or were canvassed as wholly blank or void, a writ of mandamus may, upon the application of any candidate voted for at such election in such

1918.]

Opinion, per COLLIN, J.

[225 N. Y.]

district, within twenty days thereafter, issue out of the supreme court to the board or body of canvassers, if any, of the return of the inspectors of such election district, and otherwise to the inspectors of election making such statement, requiring a re-canvass of such ballots. If the court shall, in the proceedings upon such writ, determine that any such ballot was improperly canvassed, it shall order the error to be corrected. Boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings."

Its purpose and scope are not obscure or doubtful. The courts must adhere to and cannot enlarge them. (Matter of Tamney v. Atkins, 209 N. Y. 202.) In no class of litigations is a strict and impartial adherence to the established rules of procedure and legal principles more essential or conservative of public quietude and respect for law than in the class in which is the case at the bar. The electors of the several parties and their candidates are justly and wisely sensitive to any departure of the courts from such adherence. The section empowers the court, under the requisite allegations in behalf of a candidate voted for at an election, and sufficient proofs, to require through a writ of mandamus the board of canvassers of the return of the inspectors of election to re-canvass, and correct the errors in the original canvass of, the protested or the void or the blank ballots.

The writ of mandamus authorized by section 381 is the ordinary writ. (People ex rel. Hasbrouck v. Supervisors, Dutchess Co., 135 N. Y. 522; People ex rel. Bantel v. Morgan, 20 App. Div. 48; People ex rel. Perry v. Board of Canvassers, Sullivan Co., 88 App. Div. 185.) The legislature did not, by the language of the section, invest it with unique or extraordinary characteristics. The ordinary and established rules and procedure, statutory, at common law and judicial, authorizing and regulating the issuance of a writ of mandamus are applicable to it.