Derivation: Election Law, § 132.

Amended by L. 1913, ch. 821, in effect Dec. 17, 1913.

The board of county canvassers has only ministerial and not judicial duties to perform and cannot enter upon a judicial investigation to ascertain the genuineness of a return which the law required to be returned to it. Such return is favored by the presumption of official honesty and regularity. If the returns are not regular, the board should send them back to the inspectors for correction. People ex rel. Russell v. Board, (1887) 46 Hun 390; People ex rel. Noyes v. Board, (1890) 34 N. Y. St. Rep. 8; Matter of Noyes, (1890) 34 N. Y. St. Rep. 127; People ex rel. Noyes v. Board, (1891) 126 N. Y. 392; People v. Cook, (1853) 8 N. Y. 67; People ex rel. Deuchler v. Board, (1882) 64 How. 337; Matter of Felt, (1871) 11 Abb. (N. S.) 207; People v. Van Slyck, 1825) 4 Cow. 297; Ex parte Heath, (1842) 3 Hill 42; Kortz v. Canvassers, (1882) 12 Abb. N. C. 84.

The board of state canvassers act ministerially in the main in making their certificate. Their judicial power extends no further than to take notice of matters of public notoriety. The Supreme Court alone has the power to go behind the returns of the canvassers and the ballot box and determine the intention of the voters by evidence aliunde the return. People v. Cook, (1853) 8 N. Y. 67, aff'g 14 Barb. 259.

A writ of mandamus will issue to compel the canvassing board to send back to the inspectors, for correction, returns which do not show upon their face that any particular person received any votes whatsoever, and which do not contain a statement of the number of general ballots protested as "marked for identification." People ex rel. Ranton v. City of Syracuse, (1895) 88 Hun 203, 34 N. Y. Supp. 661.

A mandamus will lie to compel the county board to send back to the inspectors for correction returns upon which the names of candidates are incorrectly given or misspelled. People ex rel. Munro v. Board, (1892) 129 N. Y. 469. Summoning inspectors to correct return. When the statement or return of election district inspectors states a less number of votes for certain candidates than that shown by the unquestioned tally sheet, the board of county canvassers may be required by mandamus, on the petition of the candidates prejudiced by the return, to exercise the power conferred by section 132 (now $432) of the Election Law to summon the inspectors to correct their return, and also, independently of the Election Law, the inspectors may be required, by mandamus, to convene and make a correct return, and the county board of canvassers directed to canvass the corrected return. Matter of Stewart, (1898) 155 N. Y. 545, aff'g 24 App. Div. 201, 48 N. Y. Supp. 957.

Correction of clerical errors only. Where it does not clearly appear that a clerical error exists in the returns of a canvass, an application to the court to have it corrected will be refused. In re Election of Alderman of First Ward, City of Buffalo, (1897) 49 N. Y. Supp. 241.

Inspectors of election cannot correct any other than clerical errors in the return of a canvass. In re Election of Alderman of First Ward, City of Buffalo, (1897) 49 N. Y. Supp. 241.

Inspectors of election have no power to alter their first determination and statement after the same has been filed. People ex rel. Russell v. Board, (1887) 46 Hun 390, 20 Abb. N. C. 19.

Returns may be sent back to the inspectors for correction in case of a clerical error, but not for a recount. People ex rel. Noyes v. Board, (1892) 126 N. Y. 392.

Boards of canvassers have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Their duty is simply to add together the statements of results filed with them by inspectors. People ex rel. Blodgett v. Board, (1892) 44 N. Y. St. Rep. 738, 19 N. Y. Supp. 206.

Where the inspectors of election have made a canvass of votes, they cannot be compelled or permitted thereafter to make a new one. People ex rel. Fiske v. Devermann, (1894) 83 Hun 181, 31 N. Y. Supp. 593.

The statute as to counting and certifying the votes of electors of various offices is very plain and concise and local inspectors must count the votes they receive and certify them. The county canvassing boards must. upon those returns, declare the result. They have power to have corrected clerical errors made by local boards, or send for complete returns under the statute, but the power is nowhere given in the statute to a canvassing board

to reject any vote that comes to it certified in due form by the local inspectors as having been cast at the election. Matter of Woods, (1893) 5 Misc. Rep. 575, 26 N. Y. Supp. 169.

§ 433. Mandamus to county or state boards of canvassers to correct

errors.

The supreme court may, upon affidavit presented by any voter, showing that errors have occurred in any statement or determination made by the state board of canvassers, or by any board of county canvassers, or that any such board has failed to act in conformity to law, make an order requiring such board to correct such errors, or perform its duty in the manner prescribed by law, or show cause why such correction should not be made or such duty performed. If such board shall fail or neglect to make such correction, or perform such duty, or show cause as aforesaid, the court may compel such board, by writ of mandamus, to correct such errors or perform such duty; and if it shall have made its determination and dissolved; to reconvene for the purpose of making such corrections or performing such duty. Such meeting of the board of state or county canvassers shall be deemed a continuation of its regular session, for the purpose of making such corrections, or otherwise acting as the court may order, and the statements and certificates shall be made and filed as the court shall direct, and shall stand in lieu of the original certificates and statements so far as they shall vary therefrom, and shall in all places be treated with the same effect as if such corrected statements had been a part of the originals required by law.

A special proceeding authorized by this section must be commenced within four months after the statement or determination in which it is claimed errors have occurred was made, or within four months after it was the duty of the board to act in the particular or particulars as to which it is claimed to have failed to perform its duty.

Derivation: Election Law, § 133.

This section in effect re-enacts chapter 460 of the Laws of 1880, heretofore repealed, authorizing the Supreme Court in proceedings by writ of mandamus to correct errors in the determination of boards of county canvassers and to compel them to reconvene and declare a truthful result of the returns before them. People v. Canvassers, (1882) 64 How. 201, 367, 357, 334; Kortz v. Canvassers, (1882) 12 Abb, N. C. 84; People ex rel. Noyes v. Board, (1890) 34 N. Y. St. Rep. 8; Matter of Noyes, 34 N. Y. St. Rep. 127; People ex rel. Noyes v. Board, (1891) 126 N. Y. 392. But see People v. Supervisors, 12 Barb. 217, holding that a mandamus will not lie to compel the board of canvassers after it has performed its duties and has adjourned rine die to reassemble and correct its decision.

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When refusal of mandamus proper. When a relator seeks a determination by mandamus of a canvassing board that he has been elected to an office in the possession of another, claiming title thereto, who is not a party to the proceeding, the court may refuse the writ as a matter of discretion, leaving him to his remedy in the action provided by law for the determination of a title to an office. Matter of Hart, (1899) 159 N. Y. 278.

A mandamus will not lie to compel the board of county canvassers to can vass the returns before them when it is proven to the court that such returns are illegal because of a violation of the statute by the inspectors in receiving and counting certain votes. People ex rel. Munro v. Board, (1892) 129 N. Y. 469.

The Supreme Court at Special Term cannot issue a writ of peremp. tory mandamus which is by force of its terms and commands, in effect, an

order which restrains the board of state canvassers engaged in the performance of, or about to perform, a duty imposed by the statute. Code Civ. Pro., § 605; People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

The county board is merely an administrative body. It cannot exercise the high judicial function of passing upon the constitutionality of a statute. Nor will the court direct the board to do what they have no power in themselves to do, but must confine itself to correcting errors they may have made. Matter of Woods, (1893) 5 Misc. Rep. 575, 26 N. Y. Supp. 169.

An application under this section to compel inspectors of election to correct a canvass by striking out the votes given by women in a school commissioner district on the ground that the statute by which women were permitted to vote (L. 1892, ch. 214) is unconstitutional, should be denied. Matter of Woods, (1893) 5 Misc. 575, 26 N. Y. Supp. 169.

The court has no inherent power to review the action of election officers or boards of canvassers, but before it can act must find authority to do so in the Election Law. People ex rel. Cantor v. County Board of Canvassers, (1915), 170 App. Div. 889, 154 N. Y. Supp. 375.

The court has no power to interfere by mandamus with the canvassing of returns regular upon their face by the county board when it is simply alleged that fraud has been committed in the counting of votes by the inspectors. If there were two returns, one true and the other false, the court might compel the board to canvass the true one. People ex rel. Gregg v. Board, (1889) 54 Hun 595, 8 N. Y. Supp. 259.

Until the legal presumption is overcome that state officers will perform their statutory duties, a peremptory mandamus will not lie. People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

The question whether fraud has been committed in making the returns cannot be properly tried in a proceeding to compel the board of county canvassers to canvass the returns. This question can only be tried in a contest before the proper tribunal. People ex rel. Hatzel v. Board, 58 How. 141. The court should not permit to be canvassed by the state board a return containing the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction. People ex rel. Daley v. Rice, (1892) 129 N. Y. 449, 14 L. R. A. 643.

A mandamus is proper directing the board of county canvassers not to canvass irregular returns. People ex rel. Russell v. Board, (1887) 46 Hun 390, 20 Abb. N. C. 19.

Where an official board acts only ministerially the court has a clear right to direct its ministerial action. Matter of Noyes, (1890) 34 N. Y. St. Rep. 127.

For the settlement of contests over elections courts exist, with adequate powers to investigate the causes of complaints, and for that end to take proofs and to judge accordingly. Boards of canvassers have no such powers. People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

The public has an interest, quite as great, perhaps, as an individual candidate, in the result of an election, and any citizen has the right to invoke the aid of the court in compelling boards of canvassers to perform their official duties. People ex rel. Daley v. Rice, (1892) 129 N. Y. 449, 14 L. R. A. 643. A peremptory writ of mandamus is proper to compel the board of canvassers to reject a second return. People ex rel. Fiske v. Devermann, (1895) 83 Hun 181, 31 N. Y. Supp. 593.

What reviewable by mandamus. Upon an application for a writ of mandamus to require the board of canvassers of a county to reconvene and correct alleged errors in its canvass of the votes cast upon a question submitted, the court has no power to decide whether the question as printed on the ballot was in the form prescribed by law. People ex rel. Williams v. Board of Canvassers, (1905) 105 App. Div. 197, 94 N. Y. Supp. 996, aff'd 183 N. Y. 538.

§ 434. Proceedings of state board of canvassers upon corrected statements of county boards.

When a new or corrected statement or certificate, made by a board of county canvassers under the provisions of the preceding section, shall vary from the original statement or certificate with reference to votes for the offices of governor, lieutenant-governor, judge of the

court of appeals, justice of the supreme court, secretary of state, comptroller, state treasurer, attorney-general, state engineer and surveyor, senator or representative, in congress, or any of them, the county clerk, or other officer with whom the same is filed, shall forthwith prepare and transmit certified copies thereof to the officials mentioned in section four hundred and thirty-nine of this article, in the manner therein prescribed. The secretary of state shall thereupon file in his office the certified copy received by him, and obtain from the governor and comptroller the certified copies received by them, or either of them, and file the same in his office. He shall then, and within five days after any such certified copy has been received by him, appoint a meeting of the state canvassers to be held at his office, or the office of the state treasurer or comptroller, and the said board of state canvassers shall, from such certified copies, proceed to make a new statement of the whole number of votes given at the election referred to in such statement for the various offices above mentioned, or any of them, so far as the number of votes for any particular office or candidate has been changed by such new or corrected statement in the manner provided by section four hundred and forty-two of this article. Upon the new or corrected statement thus made, the said board of state canvassers shall then proceed to determine and declare what person or persons whose votes are affected by such new or corrected statement have been, by the greatest number of votes, duly elected to the various offices, or any of them, and the statement, certificate and declaration thereupon made shall stand in lieu of the original statement, declaration and certificate so far as the latter are changed by the former.

Derivation: Election Law, pt. of § 134.

§ 435. Mandamus to state board to canvass corrected statements of county boards.

The supreme court shall, upon application of a candidate interested in the result of such new or corrected statement, or of any voter in the county from which such statement came, and upon proof by affidavit that the same has been made and filed as herein provided, and that the state board of canvassers has neglected or refused to act thereon within the time above prescribed, require said board to act upon such new or corrected statement, and canvass the same as above provided, or show cause why it should not do so; and in the event of the failure of such board to act upon such new or corrected statement and canvass the same, or show cause as aforesaid, the court may compel such board by writ of mandamus to act upon and canvass such new or corrected statement, and make a statement, certificate and declaration in accordance therewith; and if the state board of canvassers shall have made a determination, and adjourned or dissolved before receiving such new or corrected statement, the court may compel such board to reconvene for the purpose of carrying out its order and direction; and for that purpose the meeting of said board shall be deemed a continuance of its regular session.

Derivation: Election Law, pt. of § 134.

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§ 436. Proceedings upon corrected statements.

The state board of canvassers and the secretary of state shall respectively have the same powers and discharge the same duties with reference to new or corrected statements, that they have and are charged with with reference to original statements.

Derivation: Election Law, pt. of § 134.

Consolidators' note. The old section charged the officers in question with the same powers and duties "with reference to statements made under this section that they have and are charged with under the provisions of sections one hundred and thirty-nine and one hundred and forty of this act." The section having been split up, this is now made to charge them with the same powers and duties "with reference to new or corrected statements that they have and are charged with with reference to original statements."

§ 437. Statements of canvass by county boards; preservation of protested, void and wholly blank ballots.

Upon the completion by a county board of canvassers of the canvass of votes of which original statements of canvass are by law required to be delivered to them, by the boards or officers with whom the same may have been filed by the inspectors of election, they shall make separate statements thereof as follows:

1. One statement of all such votes cast for each office of elector of president and vice-president of the United States.

2. One statement of all such votes cast for each state office, to include, in the case of a candidate for governor who was nominated by two or more parties or independent bodies, a separate statement of the number of votes cast for him as the candidate of each party or independent body by which he was nominated.

3. One statement of all such votes cast for each office of representative in congress, except that the board of canvassers in the county of New York shall not make a statement of the votes cast in any election district in said county, for any candidate for the office of assemblyman, senator or representative in congress, the candidates for which were also voted for by voters in election districts in any county not within the city of New York.

4. One statement as to all such votes cast upon every proposed constitutional amendment or other proposition or question duly submitted to all the voters of the state.

5. One statement as to all the votes cast for all and each of the candidates for each office of member of assembly for which the voters of such county or any portion thereof, except as provided in paragraph numbered three in this section, were entitled to vote at such election.

6. One statement as to all the votes cast for each county office, and office of school commissioner, for which the voters of such county, or any portion thereof, were entitled to vote at such election, and to be canvassed by them.