without just compensation therefor to the owner of the property. Art. 1, § 6; Abendroth v. Railroad Co., 122 N. Y. 1. Had the plaintiff any rights to air, light or access as "abutting owner" of lands bounded upon the street which was closed as a street, and upon which "all the structures of the defendant complained of in this case are situate?" The street which was occupied by defendant's structures in this case had been in the use of the general public as a street for more than fifty years, and the plaintiff and her grantors had used the access which it afforded to her house and premises for that period of time. The structures complained of practically destroyed the only access to the plaintiff's premises with a team and wagon, and the annual rental value of the plaintiff's premises was diminished in consequence of the defendant's structures by the sum of $400 or $500. It has been held by this court, and recently by each division of it, that an owner of a lot adjoining a city street, although his title extends only to the side of the street, and he has no ownership of the land or interest therein save as abutting owner, has incorporeal private rights therein, which are incident to his property, and which may be so impaired as to entitle him to damages. Such rights are private property within the provision of the State Constitution (art. 1, § 6) which forbid the taking of private property for public use without just compensation. It is no justification therefore for the impairment that the act complained of was done pursuant to legislative authority. Abendroth v. Railroad Co., 122 N. Y. 1. The owners of lots abutting on a city street, the fee of which is in the municipality, have by virtue of proximity special and peculiar rights, facilities and privileges therein, in the nature of easements, which are not common to the citizen, and constitute property of which they cannot be deprived by the Legislature or the municipality, or both, without compensation, and any use of such street inconsistent with its use as a public street, which interferes with these easements, is a taking of property, for which said owners are entitled to compensation to the extent of the damages occasioned thereby." Kane v. Railroad Co., 125 N. Y. 165. Since the able and exhaustive examination which this question has received in the opinions of the court in the two cases last referred to, there is no occasion for further discussion of it. These cases hold, and they are supported by numerous authorities, that though the defendants therein had constructed and run their roads under authority of the Legislature and of the municipality, yet there was a right of access to the plaintiff's premises, for substantial interference with which defendant was liable, and that the plaintiff could not be deprived of such right without just compensation. running the cars of a railroad along one of the streets of a city which is still devoted to and used by the general public as a street. Under the provisions of the statute in relation to country roads, and as I apprehead under those of most city and village charters as to streets and roads in cities and villages, the officers having them in charge cannot arbitrarily abandon or discontinue them. The statute provides a regular mode of procedure, with compensation, to effect a discontinuance of them. The question of the right or power of a municipality to discontinue a street has frequently been presented to the courts of this State, and it has been held that the authorities might do so when it is done in the manner prescribed by law, and when there is left to the private citizen other and suitable means of access. To that effect are the cases of Radcliff Ex'rs v. Mayor, etc., 4 N. Y. 195; Coster v. Mayor, etc., 43 id. 399; Fearing v. Irwin, 55 id. 490. But it will be observed, upon an examination of these cases, that they clearly and distinctly recognize the right of access, and that the owner of such rights cannot be deprived of a street affording him access to his premises unless there is left for his use and enjoyment other suitable means of access, or the payment of a just compensation for the deprivation of the same. Such was the character of the case of Wilson v. Railroad Co. (Sup.), 2 N. Y. Supp. 65, forming a part of the brief of respondent's counsel, and upon the authority of which the learned General Term seems to have relied in the decision of this case. In that case the plaintiff's lot extended from King to Litchfield streets in the city of Rochester. The defendant, under chapter 147, Laws of 1880 (the act in question in this case), closed up Litchfield street but left the access afforded by King street; in short, did not deprive the plaintiff of the means of access to his lot. I am not disposed to adopt the doctrine that a municipality may close up a street upon which abutting owners have built expensive structures for residences and business, and enjoyed access to them from the street so closed for many years, arbitrarily and without compensation for the injuries done to such rights. Such rights are substantial and essential rights for the enjoyment of property and are appurtenances thereto. Abendroth v. Railroad Co., 122 N. Y. 498; Kane v. Railroad Co., 125 id. 280. It would thus seem that the plaintiff could not be deprived of her rights if the city of Rochester itself, under any power that may reside in its municipal charter, had closed the street and debarred the plaintiff from the enjoyment of these rights without making or providing compensation therefor. But it may be contended that that view is not the real aspect in which this case is to be considered and decided. The municipality of the city of Rochester did not directly close this street, and in that way interfere with the plaintiff's right, and that we need not here discuss or decide the liability of the city for that act as it is not a party to the action. The defendant, the railroad company, did the act complained of, and this action is brought against that company for its agency in interfering with and violating plaintiff's rights. The railroad company had laid its track upon this street with the consent of the city of Rochester, and by virtue of its right under condemnation proceedings. The right it acquired under the latter proceeding was the right to use this street to lay its track and run its cars, subject to the older and superior rights of the general public to use the street, and as we have seen subject to the rights of the abutters to access, air and light. We come now to the more particular consideration of the question whether a party enjoying the rights of light, air or access may be deprived of such rights by the action of the municipal authority in the discontinuance of the street in respect to which such rights exist, without compensation therefor or any provision for compensation. This question may be considered as simply a discontinuance of the street in question, within the power and discretion possessed by the proper officers of the city of Rochester, or as a discontinuance or an alteration of this street by municipal authority, or by commissioners acting for the municipality, under an act of the Legislature in connection with and in furtherance of the convenience and advantages of the defendant's railroad. Can the city exercise such power in a manner that shall deprive a citizen of the right of access to his premises while affording or leaving him no other access? We have seen, from the cases above cited, that a municipality cannot divest the citizen of such rights, even where the munic-ing compensation to the abutting owners, the defend. ipality grants the right of laying the tracks and Now it seems to follow as a conclusion from these premises, that if neither the State nor the city of Rochester could legally close this street, without mak aut railroad company acquired no right to erect its THE ALBANY LAW JOURNAL. 99 structures in such abandoned or discontinued street. render the tax a tax upon the receipts themselves, and Stetson v. Fazon, 19 Pick. 147. And if the street has hence in its application to railroads which enter the not been legally discontinued, then the right of the State from another State or from Canada, the act does railroad company is still limited as it was when it was not operate as a regulation of inter-State or foreign first acquired, and is subject to the rights of the plain- commerce. The designation does not always indicate tiff in respect to the easements, and the rights of the merely an inland imposition or duty on the consumpgeneral public in respect to travel and passage. When tion of commodities, but often denotes an impost for therefore the defendant placed the structures com- a license to pursue certain callings, or to deal in speplained of in the street, it violated the rights of the cial commodities, or to exercise particular franchises. plaintiff in a much more marked manner than was It is used more frequently in this country in the latter done by the elevated railroad companies in the Abend-sense than in any other The privilege of exercising roth and Kane Cases, supra, and for which this court held them liable in damages. Since examining this case and writing the views and the conclusions above expressed, I have had an opportunity of perusing the very able and interesting opinion of Judge Andrews the franchises of a corporation within a State is generally one of value, and often of great value, and the subject of earnest contention. It is natural therefore that the corporation should be made to bear some As the in the case of Riening v. Railroad Co., 28 N. E. Rep. on the burdens of government. of the privilege rests entirely in the discretion of the State, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the State in its judgment may deem most conducive to its interests or policy. It may require the payment into its treasury each year of a specific sum, or may apportion the 640 (recently decided but not yet in the regular reports). The facts in that case were briefly these: The defendant road was located upon Water street the city of Buffalo. Plaintiff's building was located apo premises fronting and abutting said street. Upon the east of plaintiff's premises was Commercial street, and upon the west was Maiden Lane street. The munici-mount exacted according to the value of the business pal authorities of the city of Buffalo authorized the defendant in that case to raise the grade of Water street some five or six feet in front of plaintiff's premises, and extending beyond the crossing of Commercial street and leaving a strip of some nine feet in width along the north side of Water street for a wagon-way and a strip fourteen feet wide for a sidewalk at the former grade. The raised grade was twenty-four feet wide and was supported by stone walls, and was paved and used as a street when that action was commenced. The learned judge in his opinion reviewed the cases bearing upon this subject, and distinguished it from the case of Fobes v. Railroad Co., 121 N. Y. 505, upon which the defendant in that case sought to sustain the defense, and held that the raising of the grade of the street in that manner, even under the license of the authorities of the city of Buffalo, was a violation of the plaintiff's rights of access, though the plaintiff had no title to the land within the lines of the street, and that the defendant was liable for the damages plaintiff had sustained. The case under consideration is a much stronger case than the case cited. In the case under consideration the obstruction prevented access to plaintiff's premises with a team and vehicle. In the case referred to it made it inconvenient to approach plaintiff's premises in that manner. We think the direction of a verdict for the defendant was error, and that the question of plaintiff's damages should have been submitted to the jury. The judgment should be reversed and a new trial granted, with costs to abide the event. All concur except BRADLEY and HAIGHT, JJ., not sitting. UNITED STATES SUPREME COURT AB- CONSTITUTIONAL LAW TAXATION OF RAILROAD FRANCHISE-INTER-STATE AND FOREIGN COMMERCE.Act of Maine of 1881 requires every corporation, etc., operating a railroad in the State, to pay "an annual excise tax for the privilege of exercising its franchises," the amount of the tax to be determined according to a sliding scale proportioned to the average gross earnings per mile within the State for the year preceding the levy of the tax. Held, that the method of determining the amount of the tax is merely a way of ascertaining the value of the privilege, and does not permitted, as disclosed by its gains or receipts of the present or past years. The character of the tax, or its validity, is not determined by the mode adopted in fixing its amount for any specific period or the times of its payment. The whole field of inquiry into the extent of revenue from sources at the command of the corporation is open to the consideration of the State in determining what may be justly exacted for the privilege. The rule of apportioning the charge to the receipts of the business would seem to be eminently reasonable, and likely to produce the most satisfactory results, both to the State and the corporation taxed. The court below held that the imposition of the taxes was a regulation of commerce, inter-State and foreign, and therefore in conflict with the exclusive power of Congress in that respect; and on that ground alone it ordered judgment for the defendant. This ruling was founded upon the assumption that a reference by the statute to the transportation receipts, and to a certain percentage of the same, in determining the amount of the excise tax, was in effect the imposition of the tax upon such receipts, and therefore an interference with inter-State and foreign commerce. But a resort to those receipts was simply to ascertain the value of the business done by the corporation, and thus obtain a guide to a reasonable conclusion as to the amount of the excise tax which should be levied; and we are unable to perceive in that resort any interference with transportation, domestic or foreign, over the road of the railroad company, or any regulation of commerce which consists in such transportation. If the amount ascertained were specifically imposed us the tax, no objection to its validity would be pretended. And if the inquiry of the State as to the value of the privilege were limited to receipts of certain past years, instead of the year in which the tax is collected, it is conceded that the validity of the tax would not be affected; and if not, we do not see how a reference to the results of any other year could affect its character. There is no levy by the statute on the receipts themselves, either in form or fact. They constitute, as said above, simply the means of ascertaining the value of the privilege conferred. This conclusion is sustained by the decision in Insurance Co. v. New York, 134 U. S. 594. The Home Insurance Company was a corporation created under the laws of New York, and a portion of its capital stock was invested in bonds of the United States. By an act of the Legislature of that State, of 1881, it was declared that every corporation, jointstock company or association then or thereafter incorporated under any law of the State, or of any other State or country, and doing business in the State, with certain designated exceptions not material to the question involved, should be subject to a tax upon its corporate franchise or business, to be computed as follows: If its dividend or dividends made or declared during the year ending the 1st day of November amounted to six per centum or more upon the par value of its capital stock, then the tax was to be at the rate of onequarter mill upon the capital stock for each one per cent of the dividends. A less rate was provided where there was no dividend or a dividend less than six per cent. The purpose of the act was to fix the amount of the tax each year upon the franchise or business of the corporation by the extent of dividends upon its capital stock, or where there were no dividends, according to the actual value of the capital stock during the year. The tax payable by the company, estimated according to its dividends, under that law, aggregated $7,500. The company resisted its pay ment, asserting that the tax was in fact levied upon the capital stock of the company, contending that there should be deducted from it a sum bearing the same ratio thereto that the amount invested in bonds of the United States bore to its capital stock, and that the law requiring a tax without such reduction was unconstitutional and void. It was held that the tax was not upon the capital stock of the company, nor upon any bonds of the United States composing a part of that stock, but upon the corporate franchise or business of the company, and that reference was only made to its capital stock and dividends for the purpose of determining the amount of the tax to be exacted each year. And the court said: "The validity of the tax can in no way be dependent upon the mode which the State may deem fit to adopt in fixing the amount for any year which it will exact for the franchise. No constitutional objection lies in the way of a legislative body prescribing any mode of measurement to determine the amount it will charge for the privileges it bestows." The case of Steamship Co. v. Pennsylvania, 122 U. S. 326, in no way conflicts with this decision. That was the case of a tax, in terms, upon the gross receipts of a steamship company, incorporated under the laws of the State, derived from the transportation of persons and property between different States and to and from foreign countries. Such tax was held, without any dissent, to be a regulation of inter-State and foreign commerce, and therefore invalid. We do not question the correctness of that decision, nor do the views we hold in this case in any way qualify or impair it. Dec. 14, 1891. State of Maine v. Grand Trunk Ry. Co. of Canada. Opinion by Field, J. Bradley, Harlan, Lamar and Brown, JJ., dissenting. NEW YORK COURT OF APPEALS ABSTRACTS. AGENCY-RATIFICATION-BENEFITS OF CONTRACT.— Defendant's husband conveyed to her, in consideration of $1, land which was subject to a mortgage. Afterward, without defendant's knowledge or consent, the husband procured a loan from plaintiff for the purpose of discharging the mortgage, which was about to be foreclosed, and agreed that defendant should give plaintiff a mortgage on the land to secure the loan. The mortgage debt was paid by the husband with the money so lent, and a release was executed by the mortgagee and recorded. Defendant paid the fees for recording, and obtained the release from plaintiff who had taken it from the clerk's office after it was recorded. Held, that defendant ratified her husband's unauthorized promise, and equity would compel her to execute a mortgage to plaintiff for the amount of his loan. Second Division, Oct. 27, 1891. Dort v. Nicken. No opinion. Order reversed and judgment entered on decision of Special Term affirmed with costs, on opinion of Daniels, J., at Special Term. 7 N. Y. Supp. 235, reversed. APPEAL-EXCEPTIONS NOT TAKEN AT TRIAL.-Where the record shows that all plaintiffs' evidence was admitted, and that they reserved no exceptions, a judg. ment against them and an order denying a new trial are not subject to review on appeal here. Dec. 8, 1891. Wicks v. Thompson. Opinion by Earl, J. 13 N. Y. Supp. 651, affirmed. ATTACHMENT-WRONGFUL-LIABILITY OF ATTACHING CREDITORS-EFFECT OF INDEMNIFYING BONDPARTIES-EVIDENCE.—(1) In an action for the wrongful taking of goods from an assiguee under attachments against his assignor, brought by the assignee against the attachment creditors, proof that defendants gave the sheriff an indemnifying bond presumptively establishes their liability for the trespass committed by him. (2) In such case the attaching creditors are jointly and severally liable with the sheriff, and plaintiff may sue them without joining him. (3) Various creditors seized under attachment property in the hands of the debtor's assignee, claiming that the assignment was fraudulent as to them, and each gave a separate bond of indemnity to the sheriff. Held, that on the assignment being declared valid the assignee could sue one of the creditors for the entire damage, and it was no defense that the owners were also liable for the trespass. (4) In such case, the action being brought against the creditors, and not the sheriff, for damages for the wrongful taking of the property, the coutention that defendants as indemnitors would have the right to be substituted as defendants in place of the sheriff, under the Code of Civil Procedure, section 1421, providing that, where an action is brought against an officer for damages by reason of a levy, etc., if an indemnity bond was given the officer, the indemnitor may apply for an order substituting him as defendant in place of the officer, and that they are only liable for such damages as they would be subjected to in an action by the sheriff on the bonds of indemnity, is without merit, as plaintiff had the right to sue defendants instead of the sheriff, and having elected to do so, the giving of the bonds to the sheriff, being res inter alios acta, cannot prejudice plaintiff. (5) In such case, even if the Code did permit such substitution, so as to impair the right of plaintiff to recover his full damages from the attaching creditors, it would be taking prop erty without due process of law, as plaintiff's cause of action against the creditors is a right of property. (6) Where a creditor unlawfully seizes under attachment property in the hands of his debtor's assignee, and gives an indemnifying bond to the sheriff, his liability in an action against him by the assignee for damages rests upon the wrongful taking of the property, and not upon, nor is it governed by, the bonds. (7) In an action for the wrongful taking of goods from an assignee under attachments against his assignor, brought by the assignee against the attaching creditors, the creditors having given the sheriff indemnifying bonds, the bona fides of the assignment was attacked by defendants. Held, that the record of a judgment in an action brought by such creditors against the assignor and assignee to set the assignment aside as fraudulent, adjudging the assignment valid, was admissible evidence notwithstanding the fact that the bonds of indemnity were given, since in both actions the creditors appeared in their individual capacity only. (8) Where a joint action is brought against two or more persons for unlawfully taking property under different warrants of attachment, one of such creditors cannot complain if plaintiff, by leave of court, discontinues the action against the others, since he had the right originally to sue either one or all of the wrong-doers. Dec. 22, 1891. Dyett v. Hyman. Opinion by Ruger, C. J. 13 N. Y. Supp. 895, affirmed. ATTORNEY AND CLIENT-EQUITABLE ASSIGNMENTFORFEITURE.-(1) An attorney agreed with his client to conduct certain litigation, and the client agreed that the attorney should receive as his compensation a specified percentage of the amount recovered, reserving the right within sixty days to substitute a cash fee in place of such percentage. Held, that the agreement constituted an equitable, conditional assignment to the attorney of an interest in the subject of litigation. Fairbanks v. Sargent, 104 N. Y. 108; Williams v. Ingersoll, 89 id. 508. (2) The attorney, having obtained an offer of settlement which his client would not accept, withdrew from the case, which was afterward settled by other counsel in a different way. Held, that the attorney, by withdrawing from the case, had forfeited the interest given him by the agreement. Dec. 1, 1891. Holmes v. Evans. Opinion by Andrews, J. 13 N. Y. Supp. 614, affirmed. (1) Defendants contracted with plaintiff to furnish him a theater for performances by his comedy company, plaintiff to receive therefor fifty per cent of the gross receipts. In a letter written by plaintiff to defendants subsequent to said contract plaintiff inclosed a written contract, to be signed by defendauts, for sixty per cent of the gross receipts, stating that he could not think of playing for less. Defendants in reply returned the contract unsigned, and said they did so because "we have a contract signed by you and do not need any other." Held, that plaintiff was justified by defendant's letter in considering the first contract as still in force. Johnstone v. Milling, 16 Q. B. Div. 460: Frost v. Knight, L. R., 7 Exch. 111; Zuck v. McClure, 98 Penu. St. 541. (2) In an action for the breach of such contract plaintiff is entitled to recover the amount of the losses he sustained in preparing for the appearance of his company at defendants' theater, and not the profits he might have made by the performances, as they are not ascertainable. Second Division, Dec. 22, 1891. Bernstein v. Meech. Opinion by Bradley, J. 8 N. Y. Supp. 944, affirmed. ex CONSTITUTIONAL LAW-TAKING PUBLIC PROPERTY FOR PRIVATE USE-ACTS INVALID IN PART-ERIE CANAL (1) Laws of 1889, chapter 291, section 18, as amended by Laws of 1890, chapter 314, authorizing the Syracuse water board to conduct water not required for the Erie canal from S. lake to said city, through a pipe of certain dimensions, provided that before any water should be taken, the board should, at the peuse of said city," increase the storage capacity of the lake sufficiently to store therein all the ordinary flow of its water-shed; that the dam and all structures connected therewith, together with the regulation of the flow of water through the pipe, should be in the exclusive control of the superintendent of public works, and should be kept in repair at the "expense of the city." Held, that the act conferred only a license, and though the waters of S. lake, so far as necessary, had been previously appropriated as a feeder for the Erie canal, the act was not repugnant to the Constitution, article 7, section 6, which provides that the State shall not sell, lease or otherwise dispose of the Erie canal, but it shall remain the property of the State and under its management forever." (2) The fact that 1 Revised Statutes, page 217, section 1, which was passed for certain administrative purposes, provided that the navigable communication between Lake Erie and the Hudson river, and all the side cuts, feeders and other works belonging to the State connected therewith," should be known as the "Erie Canal," was immaterial. (3) The act does not "appropriate" public property for local or private purposes, within the meaning of the Constitution, article 1, section 9, which provides that the assent of two-thirds of the members elected to each branch of the Legislature shall be requisite to every bill "appropriating the public moneys or property for local or private purposes," since by the requirement that the city shall increase the storage capacity of the lake, and erect and maintain at its own expense a dam and other structures, the State receives a consideration for the license. Rumsey v. Railroad Co., 28 N. E. Rep. 763, distinguished. (4) Laws of 1889, chapter 291, provided for the appointment of the Syracuse water board, and authorized it in the name of the city to acquire, construct and maintain a system of water-works for the city. Section 18 empowered the board to "appropriate so much of the waters of S. lake "as may be necessary" to supply the city and its inhabitants with water, on condition that the city should, when required by the canal board, “furnish" from such source as much water for the use of the Erie canal as should be taken by the city from S. lake. Held, that conceding section 18 to be unconstitutional the whole act was not thereby rendered void, since the act constituted a water board and clothed it with some powers that could be exercised. (5) A clear and substantial conflict with the Constitution will alone justify the condemnation of a statute. Dec. 22, 1891. Comstock v. City of Syracuse. Sweet v. Same. Opinion by Earl, J. 14 N. Y. Supp. 421, and 16 id. 381, reversed. 27 N. E. Rep. 1081, affirmed. CORPORATIONS-STOCKHOLDERS-PERSONAL LIABILITY. (1) Under the General Manufacturing Act, which provides that all stockholders of the corporations named in the act shall be liable to creditors thereof until the entire capital stock shall have been paid in, the word "creditors" does not include directors to whom the corporation is indebted for salaries. Riggs v. Palmer, 115 N. Y. 506. (2) The acceptance and retention of a certificate of stock by one who has paid to the corporation the face value of the stock shows that he did not intend the payment as a gift to the corporation, but as a subscription for said stock. Dec. 1, 1891. McDowall v. Sheehan. Opinion by Earl, J. 13 N. Y. Supp. 386, reversed. COVENANTS-EVIDENCE OF BREACH-DEED AS MORTGAGE. (1) In an action for breach of covenants of seizin and right to convey, proof that defendant's grantor asserts that his deed to defendant was in fact a mortgage is insufficient to make out even a prima facie case for plaintiff. (2) Where a mortgagor gives his mortgagee an absolute deed of the mortgaged land, under a parol agreement that the mortgagee shall sell the land, deduct from the proceeds the amount of the mortgage debt, and pay the residue to the mortgagor, the deed does not thereby become a mortgage. Dec. 1, 1891. Wilson v. Parshall. Opinion by Earl, J. 7 N. Y. Supp. 479, affirmed. CUSTOMS AND HEALTH OFFICERS UNLAWFUL SEIZURE OF IMPORTED GOODS-TORT OF PARTNER-VERDICT. (1) The collector of the port of New York, under authority of the health regulations, and by the advice and approval of the health officer, whom he was required by the Revised Statutes of the United States, sections 4792, 4793, to aid, directed the inspector in charge of a vessel laden with rags to send the rags on bonded lighters to defendants' stores, such stores having been designated by the health officer as a warehouse for the storage and disinfection of imported The rags came within the rules which author rags. ized them to be sent there and disinfected, but though they were taken there apparently for disinfection, neither the health officer nor the collector ordered them to be disinfected. Defendants proceeded to disinfect them without such actual orders, and without the approval by the health officer of the efficiency of the work, or of the charges therefor. Held, that defendants, having paid the lighterage charges, had, as against the importers of the rags, a lien thereon for such charges, and for storage for such time as the rags properly remained in the stores, but not for charges for disinfection under Laws of 1865, chapter 592, sections 6, 7, providing that when expenses shall be incurred or services rendered by the health officer or his employees in discharge of the duties imposed upon him by law, in relation to vessels, merchandise, etc., under quarantine, such expenses, services and charges shall be a lien on the vessels, merchandise, etc. (2) In an action for the wrongful detention of plaintiffs' goods, the fact that the jury disagree as to one defendant does not affect their verdict as against the others, though the complaint alleges a conspiracy between all of the defendants. (3) Where one partner acts for the firm in demanding illegal charges, and detaining goods until they are paid, every member of the firm is liable for the damage. Second Division, Dec. 22, 1891. Lockwood v. Bartlett. Opinion by Bradley, J. 7 N. Y. Supp. 481, modified. * BALLOTS DISTINGUISHING MARK ELECTIONS MANDAMUS TO BOARD OF CANVASSERS.-(1) Laws of 1890, chapter 262, as amended by Laws of 1891, chapter 296, requires the ballots used at a public election to be uniform in size, type, color and quality of paper, and provides (§ 17) that the indorsement on each ballot (which is the only part exposed) must be printed in certain type, and shall read, Official ballot for —;' and after the word 'for' shall follow the description of the polling-place for which the ballot is prepared. * *" Section 31 provides that no inspector of election shall deposit, or permit to be deposited, "any ballot which is not properly indorsed and numbered;" and that "no ballot which has not the official indorsement shall be counted," except as provided in section 21; nor shall any inspector deposit, or permit to be deposited, any ballot that has any distinguishing mark on the outside thereof. Section 21 provides for unofficial ballots which may be printed or written, where the official ballots have been lost, and in certain other emergencies, and expressly declares that such ballots shall have no indorsement. Held, that official ballots intended for one pollingplace, which is designated in the indorsement thereon, such ballots being for the candidates of one party only, which, through the inadvertence of the officer having charge of the preparation of the ballots, or for any other reason, are sent to a polling place other than is designated in the indorsement, and there voted and deposited by the inspector, cannot be counted, since the indorsement is not as prescribed by law, and contains a distinguishing mark. (2) In such case the bona fides of the voters in using such ballots, or of the inspectors in receiving them, is immaterial. (3) Where the board of canvassers have counted such ballots and included them in their statement of the result of the election, mandamus will lie to compel them to correct the statement by deducting such votes. Dec. 29, 1891. People, ex rel. Nichols, v. Board of Canvassers of Onondaga County; People, ex rel. Ryan, v. Same. Opinion by Gray, J. Andrews, Peckham and Finch, JJ., dissenting. CANVASSING BOARDS - DUTY OF COUNTY CLERK AS SECRETARY - MANDAMUS.- (1) Under the election law providing that the county clerk shall act as secretary of the board of county canvassers (but of which he is not a member), and that the statements of the board shall be certified as correct and attested by the chairman and secretary, and a copy thus certified and attested delivered to the county clerk to be recorded, the duty of the clerk as secretary is purely ministerial, and he cannot refuse to attest the statement of the board on the ground that it is incorrect or based on illegal action. (2) Where the clerk, as secretary of the board, improperly refuses for such reason to attest the statement of the board, the board can appoint a secretary pro tem. in his place to perform his duties, or can designate one of their own number as a proper officer to attest, though such power is not expressly conferred by the statute, the power being embraced in the power of the board to canvass and certify its work. (3) The statute also requires the county clerk to transmit certified copies of the statement of the board of county canvassers to the governor, the secretary of State and the comptroller, and upon these statements the State board is to act in its canvass; but if the county clerk refuses to do so, certified copies sent up by the secretary pro tem., appointed by the board of county canvassers on the clerk's refusal to perform the duties required of him, may be acted upon by the State board of canvassers. (4) Where the returns and statements sent up to the State board, though on their face proper and valid, are the result of an illegal action on the part of the county canvassing board, by which it departed from its sphere as a ministerial body, and in excess of its jurisdiction, made an illegal and erroneous canvass, mandamus will lie to compel the State board to canvass without regard to such returns. The papers, in substance, allege that the board of county canvassers illegally canvassed the result of the returns from the inspectors of election in the whole county, and made up its own canvass in opposition to such returns, and as a result gave ninetytwo more plurality to Osborne than by the returns of the inspectors he was entitled to, and resulting in an apparent plurality of fourteen votes in the senatorial district in favor of Mr. Osborne. These allegations are nowhere denied in the papers used in opposition to the application for a mandamus. Mr. Mylod simply gives a history of the events as to the refusal of the secretary to sign and what then took place. The statement of the canvass, as actually made, is attached to the papers in opposition; but there is no explanation or contradiction as to the manner of arriving at the actual result, as alleged in the moving papers. The whole case stands on that return as a legal and valid one. Treating the paper on file in the office of the secretary of State in the same way as if it were certified by the county clerk, and sent from his office and duly received and filed in the office of the secretary of State, the question presents itself as to the proper course in such case. We would then have a return which was on its face proper and valid, but in regard to which allegations were made that it was the result of an illegal action on the part of the county canvassing board, by which that board departed from its appropriate sphere as a ministerial body, and, in excess of its jurisdiction, proceeded to make an invalid canvass, and the return on file embodied the result of such illegal canvass. Upon these facts, standing uncontradicted, we think the court below, in its proper branch, would have the power to command the State canvassers to canvass without regard to such a return. As it contained the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction, and which thereby would alter the result of an election, the court should not permit it to be canvassed. As to the allegations of the manner of the making of the return by the county board, the State board could not |