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for a city office within such city, such county clerk shall forthwith make a certified copy of each such statement and, within five days after the filing thereof in his office, deliver in a sealed envelope such certified copy to the board of elections of the city of New York; on or before the fifteenth day of December in any year in which there shall have been an election for a city office for which votes were cast in a county within the city of New York the county clerk thereof shall file with the city clerk of such city a certified copy of the official canvass of the votes cast in such county or portion thereof by election districts for such city office, and such canvass by election districts shall, as soon as possible thereafter, be published in the City Record.

Derivation: Election Law, § 137, as amended by L. 1897, ch. 379, § 25; L. 1900, ch. 732, § 1; L. 1901, ch. 95, § 20; L. 1905, ch. 643, § 24.

Amended by L. 1914, ch. 244; L. 1916, ch. 537, in effect May 15, 1916.

Cross-references.- Delay or destruction of election returns. Penal Law, § 1429 (part 5, post).

§ 440. Organization and duties of board of canvassers of the city of New York.

The board of elections of the city of New York shall be the board of canvassers of the city of New York of the statements of the county boards of canvassers of the counties within such city of the votes cast in such city or any portion thereof for a city office or upon any proposition or question upon which only voters of such city were entitled to vote. The members of the board of elections shall meet at the usual place for holding their regular meeting on the first Monday in December succeeding a general election for a city office within such city and within thirty days after a special election, and shall organize by selecting one of the members as chairman. The secretary of the board of elections of the city of New York shall be the secretary of the board so organized, or if he be unable to serve the board may appoint a chief clerk to be such secretary. The secretary shall thereupon administer to the chairman the constitutional oath of office and the chairman shall administer such oath to the members of such board and the secretary thereof.

As soon as such board shall have organized the secretary shall deliver to such board the certified copies of the statements of the county board of canvassers of each county wholly or partly within such city of the votes cast for candidates for city office within such city and upon any proposition or question, if any, submitted to the voters of such city only, and the said board shall proceed to canvass such statements. If a certified copy of any statement of any county board

required to be delivered to said board shall not be delivered prior to the meeting and organization of said board, it may adjourn such meeting from day to day not exceeding a term of five days, and it shall be the duty of the secretary to procure from the county clerk of such county the required certified copy of such statement.

Upon the completion of such canvass said board shall make separate tabulated statements signed by the members of such board or a majority thereof, and attested by the secretary, of the whole number of votes cast for all the candidates for each office shown by such certified copies to have been voted for, the whole number of votes cast for each of such candidates, the number of votes cast in each county for them, and if the voters of only a part of a county were entitled to vote for such candidates, the part of such county, and the determination of the board as to the persons thereby elected to such office by the greatest number of votes. The said board shall also make a separate similar tabulated statement of the votes cast upon any proposition or question submitted at the election to the voters of such city only and shall include a determination as to whether such proposition or question by the greatest number of votes has been adopted or rejected.

Each such statement and determination shall be filed and recorded in the office of the board of elections, and the said board shall cause the publication of the same in at least two newspapers within each borough of such city and in the City Record. Upon the filing in the office of the board of elections of such statements and determination the president of the board of elections shall issue and transmit by mail or otherwise a certificate of election to each person shown thereby to be elected, such certificate to be countersigned by the members of the board of elections of the city of New York under the seal of the city of New York.

Derivation: Election Law, § 138, as added by L. 1897, ch. 379, § 26, and amended by L. 1901, ch. 95, § 21.

Where the votes cast for the office of alderman in an aldermanic district of the city of New York have been canvassed by the board of elections in accordance with an order of the Supreme Court directing it to count certain ballots which had been rejected as void, such canvass, when completed finally, determines the question as to what ballots should, and what ballots should not, be counted for such office, subject to a review of the court in a proper action brought to determine the title to the office of the candidate declared elected. When such board has issued its certificate of election to the person entitled thereto, such person's right to the office cannot be questioned by the board of aldermen. People ex rel. Krulish v. Fornes, (1903) 79 App. Div. 618, 80 N. Y. Supp. 385, aff'd 175 N. Y. 114.

§ 441. Organization of state board of canvassers.

The secretary of state, attorney-general, comptroller, state engineer and surveyor, and treasurer, shall constitute the state board of canvassers, three of whom shall be a quorum. If three of such officers shall not attend on a day duly appointed for a meeting of the board, the secretary of state shall forthwith notify the mayor and recorder of the city of Albany to attend such meeting, and they shall forthwith attend accordingly, and shall, with the other such officers attending, constitute such board. The secretary of state shall appoint a meeting of such board at his office, or at the office of the treasurer or

comptroller on or before the fifteenth day of December next after each general election, and within forty days after each special election, to canvass the statements of boards of county canvassers of such election. He shall notify each member of the board of such meeting. The board may adjourn such meeting from day to day, not exceeding a term of five days.

Derivation: Election Law, § 139, as renumbered by L. 1897, ch. 379, § 27.

§ 442. Canvass by state board.

Such board shall at such meeting proceed to canvass the certified copies of the statements of the county board of canvassers of each county in which such election was held. If any member of such board shall dissent from a decision of the board, or shall deem any of the acts or proceedings of the board to be irregular, and shall protest against the same, he shall state such dissent or protest in writing signed by him, setting forth his reasons therefor, and deliver it to the secretary of state, who shall file it in his office.

Upon the completion of such canvass said board shall make separate tabulated statements signed by the members of such board or a majority thereof, of the whole number of votes cast for all the candidates for each office shown by such certified copies to have been voted for, the whole number of votes cast for each of such candidates, the number of votes cast in each county for them, and if the voters of only a district of the state were entitled to vote for any such candidate, the name and number of such district; the determination of the board as to the persons thereby elected to such office; the whole number of votes shown by such certified copies to have been cast upon each proposed constitutional amendment or other proposition or question shown by such copies to have been voted upon; the whole number of votes cast in favor of and against each, respectively; and the determination of the board as to whether it was adopted or rejected. Each Buch statement, dissent and protest shall be delivered to the secretary of state and recorded in his office.

Derivation: Election Law, § 140, as renumbered by L. 1897, ch. 379, § 27. The state board cannot inquire into the manner of making the county board's return. People ex rel. Daley v. Rice, (1892) 129 N. Y. 449. 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.

The office of a board of state canvassers is purely ministerial; they are simply authorized to compute the votes cast throughout the state and deter mine, upon the statement made up from the returns of the boards of county canvassers, what persons have received the greatest number of votes, and upon the statements so made they must declare those persons to be elected. No other evidence may be received or used and no declaration may be made by such board except as based upon a determination arrived at by the statementa made up by it in an arithmetical manner from the various official returns before them. People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

A board of county canvassers has no authority to transmit with their offcial returns any paper attacking the validity of the election, and, if such

paper is so transmitted, the state board has no power to consider it. People ex rel. Derby v. Rice, (1892) 129 N. Y. 461.

The state board cannot consider in making its canvass other papers or affidavits than the returns regularly laid before them by the county boards. But a mandamus will not issue to compel the secretary of state to refrain from placing before them such other papers or to compel him to return them to the county canvassers. People ex rel. Sherwood v. Rice, (1892) 129 N. Y. 391.

The state board of canvassers have no power to determine what was done in the previous year, to review or reverse the work of their predecessors, or to decide that there are vacancies in office. Matter of Hart, (1899) 161 N. Y. 507.

The state board cannot inquire into the eligibility of a canddate who has received votes for an office as shown upon the returns before them. But a mandamus will not issue to compel them to deliver a certificate of election to such a person if it clearly appear to the court that he is ineligible. People ex rel. Sherwood v. Board, (1892) 129 N. Y. 360.

Files of election returns from 1838 to 1905, on file in secretary of state's office, transferred to state library by chapter 274, Laws of 1907.

§ 443. Certificates of election.

The secretary of state shall thereupon forthwith transmit a copy, certified by his signature and official seal, of each such statement as to votes cast for candidates for any office, to the person shown thereby to have been elected to such office. He shall prepare a general certificate, under the seal of this state, and attested by him as secretary thereof, addressed to the house of representatives of the United States, in that congress for which any person shall have been chosen, of the due election of all persons so chosen at that election as representatives of this state in congress; and shall transmit the same to the house of representatives at its first meeting. If any person so chosen at such election shall have been elected to supply a vacancy in the office of representative in congress, it shall be mentioned by the secretary of state in the statements to be prepared by him.

Derivation: Election Law, § 141, as renumbered by L. 1897, ch. 379, § 27.

$444. Record in office of secretary of state of county officers elected.

The secretary of state shall enter in a book to be kept in his office the names of the respective county officers elected in this state, including school commissioners, specifying the counties and districts for which they were severally elected, and their places of residence, the offices to which they were respectively elected, and their terms of office. Derivation: Election Law, § 142, as renumbered by L. 1897, ch. 379, § 27.

ARTICLE 13.

UNITED STATES SENATORS, REPRESENTATIVES IN CONGRESS AND PRESIDENTIAL ELECTORS.1

Section 449. United States senators.

450. Representatives in congress.

451. Electors of president and vice-president.

452. Meeting and organization of electoral college.
453. Secretary of state to furnish lists of electors.
454. Vote of the electors.

455. Appointment of messenger.
456. Other lists to be furnished.
457. Compensation of electors.

$449. United States senators.

At the general election next preceding the expiration of the term of office of a United States senator from this state, a successor to such office shall be elected by the people for a full term of six years. If a vacancy occur in the office of United States senator from this state in any calendar year less than thirty days prior to a general election, the governor shall make a temporary appointment to fill such vacancy until the first day of December in the succeeding calendar year. If such a vacancy occur in any calendar year more than thirty days prior to a general election the governor shall make a temporary appointment to fill such vacancy until the first day of December in such calendar year. Such an appointment to fill a vacancy shall be evidenced by a certificate of the governor which shall be filed in the office of the secretary of state. At the time of filing of such certificate the governor shall also issue, and file in the office of the secretary of state a writ of election directing the election of a United States senator to fill such vacancy for the unexpired term at the general election next preceding the expiration of the term of such appointment. The provisions of this chapter relating to the canvass of votes and of election results shall apply to such an election to fill a vacancy, except that the canvass of votes and results affecting the office of United States senator shall be completed by the county board of canvassers, and statements thereof certified to the secretary of state within ten days after the election and the canvass of such results completed by the state board of canvassers and statements thereof certified to the secretary of state before the first day of December following the election. Each county board of canvassers shall meet and organize for such purpose on the third day after the election and the state board of canvassers on the second Monday after election.

Added by L. 1913, ch. 822, in effect Dec. 17, 1913.

1Title amended by L. 1913, ch. 820, in effect Dec. 17, 1913.

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