Gaynor, J.:
It is provided in our state constitution that all laws creating boards or officers for counting votes at elections shall secure equal [148]*148representation of tile-two largest political parties (art. 2, sec. 6). The Legislature cannot override or frittqr away this safeguarding provision by creating boards or officers not composed,as it requires to recanvass and recount the votes of an election, and substituting the result to be thus ascertained for that of the constitutional election officers. -
.. But such -pro'vision does not apply to a judicial review or trial of an election contest. If, therefore, this, statute provides, for a judicial hearing and determination by the'Supreme. Court of an election contest, .it is valid. It is contended that it does not; that it-imposes only ministerial duties on the Supreme Court, and is void for that reason also. ' ■ . ,
'The canvassing and counting of votes by election officers is a ministerial and not a judicial, duty. That is unquestionable; but it does not follow that the canvassing and counting of votes may not become judicial. • Ho one would question that that is the case in a ■regular action by the-people of the state by the attorney general to oust an incumbent from an office (indeed,, that is all there is t-o be done as a rule in such an action: to ascertain the result); and of course it is the same in any other form -'of action or '.proceeding which thé Legislature prescribes fbr the hearing and decision of an election dispute.
It is true that a ministerial duty cannot be turned into a . judicial one merely by being transferred to the courts by the Legislature. The thing itself is what determines tlie branch of government to .which it belongs. In the constitution of government in this country, state, and national, government is divided into the three branches, the legislative, the executive,-and the judicial, and the powers of government are divided among these three branches according to their kind. The legislative branch may not exercise powers which. are. executive or judicial;■ the executive may not -exercise powers which .are legislative of judicial; the judicial may-not exercise powers .which are legislative or executive.-. The powers which, because of their kind, belong to any one of these branches may not be assigned to or exercised by either of the other two, or by both.of them.combined ; they can be perforated by the branch to which they belong, only. , , •
All of this -is in no wise violated in thé present case. If this [149]*149statute simply provided that the ballots should'be turned over to the Supreme Court, and that said court should recount them, and certify the result, without a hearing and determination on notice to the contestants being had, it would require the performance of mere ministerial and riot judicial "work — work which by the structure of oUr government belongs to the executive branch and may not be put upon or performed by the judicial.
But its provisions are very different. It provides for a judicial hearing and determination by due process of law, i. e., on due notice, of a contest between" candidates for an office for the certificate of election and possession of the office thereunder. Such a dispute certainly belongs to the judicial branch of "government and is referable to it by the Legislature. That its trial requires the" court to canvass and count the votes makes such canvass and count a part of its judicial action. The foundation of the court’s jurisdiction is the dispute, and everything necessary to be done in the trial of such dispute is judicial.
If this statute provided that either one of the two contestants before us might bring an action in the Supreme Court by the regular form of summons and complaint for the trial of the dispute between them, and that in that action the court should canvass and count the vote in the same manner which such statute prescribes, none of us would say that it provided for a mere ministerial performance. That, instead, a proceeding begun by a petition of one of the contestants is provided for presents no different case.
The two decisions in the state of New Jersey in State ex rel. Ruh v. Frambach (47 N. J. L. 85) and Kearns v. Edwards (17 N. J. L. J. 51; 28 Atl. Rep. 723), have no application to the question. There it was thought that the Legislature could only confer ministerial duties'on the Judge in the case, because the contest was of the office of member of the Legislature, and each house of the Legislature was by the constitution made the sole judge of the election of its members. And even' sd, the act "was not declared void. .If the court had been asked to declare it void, and considered that question, it might have been able, to see that as a whole the duties imposed were judicial. And such duties were not put on the court, but on a judge.
Many of our states have statutes for the summary hearing and [150]*150determination of election disputes by the courts on the petition of a .contestant, instead of ..leaving , such contests unheard unless the, attorneygeneral should consent to bring an action of quo warranto, or whatever fhe prescribed form may be^ in the name of the people of the state (State ex rel. Andrew v. Lewis, 51 Conn. 113; Pedigo v. Grimes, 113 Ind. 148; Brown v. McCollum, 76 Ia. 479; Freeman v. State ex rel. McDonald, 72 Ga. 812; Ewing v. Filley, 43 Penn. St. 384; State v. Johnson, 26 Ark. 281; Govan v. Jackson, 32 id. 553; Ford v. Wright, 13 Minn. 518; Newton v. Newell, 26 id. 529; People ex rel. Budd v. Holden, 28 Cal. 123; Williamson v. Lane, 52 Tex. 335; State ex rel. Mullen v. Doherty, 16 Wash. 382; Paine on Elect. chap. 35; McCrary on Elect. sec. 391, et seq.).
By-its title this, act is “ an act to provide for a judicial recount and recanvass” of the votes cast for the office of mayor in 1905 “in all cities of the first class in which the ballots have been preserved.” In passing upon its constitutionality it lias-to be taken in its.large sense as "a whole, without tod technical a strictness in respect of fits terminology. In sum . and substance it "provides for a hearing and determination by the Supreme Court of an election contest. ■ Such hearing and determination is confined, however, to such ‘questions of law and fáct as- arise on an inspection of the ballots themselves, and they are to be decided, on fhe evidence furnished by the ballots’ alone. - --
On the petition of any. candidate it requires the Supreme Court to make a summary canvass of the vote in the. election district,.'.or districts specified in the petition. ■ The court has to appoint a commissioner or commissioners to. count the ballots on notice to all of the candidates and in their presence if they appear, the count in each election district, to be by only one commissioner. If counsel for any candidate differ from the commissioner in respect of counting a ballot, it shall be laid aside as a disputed ballot. Each commissioner submits to the court the disputed ballots together with a. written statement of his count in each election district. The court rules upon each disputed ballot..and determines its validity. The questions ■ that. may be raised are not limited, to. those that were raised on the canvass and count of the election .officials.
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Gaynor, J.:
It is provided in our state constitution that all laws creating boards or officers for counting votes at elections shall secure equal [148]*148representation of tile-two largest political parties (art. 2, sec. 6). The Legislature cannot override or frittqr away this safeguarding provision by creating boards or officers not composed,as it requires to recanvass and recount the votes of an election, and substituting the result to be thus ascertained for that of the constitutional election officers. -
.. But such -pro'vision does not apply to a judicial review or trial of an election contest. If, therefore, this, statute provides, for a judicial hearing and determination by the'Supreme. Court of an election contest, .it is valid. It is contended that it does not; that it-imposes only ministerial duties on the Supreme Court, and is void for that reason also. ' ■ . ,
'The canvassing and counting of votes by election officers is a ministerial and not a judicial, duty. That is unquestionable; but it does not follow that the canvassing and counting of votes may not become judicial. • Ho one would question that that is the case in a ■regular action by the-people of the state by the attorney general to oust an incumbent from an office (indeed,, that is all there is t-o be done as a rule in such an action: to ascertain the result); and of course it is the same in any other form -'of action or '.proceeding which thé Legislature prescribes fbr the hearing and decision of an election dispute.
It is true that a ministerial duty cannot be turned into a . judicial one merely by being transferred to the courts by the Legislature. The thing itself is what determines tlie branch of government to .which it belongs. In the constitution of government in this country, state, and national, government is divided into the three branches, the legislative, the executive,-and the judicial, and the powers of government are divided among these three branches according to their kind. The legislative branch may not exercise powers which. are. executive or judicial;■ the executive may not -exercise powers which .are legislative of judicial; the judicial may-not exercise powers .which are legislative or executive.-. The powers which, because of their kind, belong to any one of these branches may not be assigned to or exercised by either of the other two, or by both.of them.combined ; they can be perforated by the branch to which they belong, only. , , •
All of this -is in no wise violated in thé present case. If this [149]*149statute simply provided that the ballots should'be turned over to the Supreme Court, and that said court should recount them, and certify the result, without a hearing and determination on notice to the contestants being had, it would require the performance of mere ministerial and riot judicial "work — work which by the structure of oUr government belongs to the executive branch and may not be put upon or performed by the judicial.
But its provisions are very different. It provides for a judicial hearing and determination by due process of law, i. e., on due notice, of a contest between" candidates for an office for the certificate of election and possession of the office thereunder. Such a dispute certainly belongs to the judicial branch of "government and is referable to it by the Legislature. That its trial requires the" court to canvass and count the votes makes such canvass and count a part of its judicial action. The foundation of the court’s jurisdiction is the dispute, and everything necessary to be done in the trial of such dispute is judicial.
If this statute provided that either one of the two contestants before us might bring an action in the Supreme Court by the regular form of summons and complaint for the trial of the dispute between them, and that in that action the court should canvass and count the vote in the same manner which such statute prescribes, none of us would say that it provided for a mere ministerial performance. That, instead, a proceeding begun by a petition of one of the contestants is provided for presents no different case.
The two decisions in the state of New Jersey in State ex rel. Ruh v. Frambach (47 N. J. L. 85) and Kearns v. Edwards (17 N. J. L. J. 51; 28 Atl. Rep. 723), have no application to the question. There it was thought that the Legislature could only confer ministerial duties'on the Judge in the case, because the contest was of the office of member of the Legislature, and each house of the Legislature was by the constitution made the sole judge of the election of its members. And even' sd, the act "was not declared void. .If the court had been asked to declare it void, and considered that question, it might have been able, to see that as a whole the duties imposed were judicial. And such duties were not put on the court, but on a judge.
Many of our states have statutes for the summary hearing and [150]*150determination of election disputes by the courts on the petition of a .contestant, instead of ..leaving , such contests unheard unless the, attorneygeneral should consent to bring an action of quo warranto, or whatever fhe prescribed form may be^ in the name of the people of the state (State ex rel. Andrew v. Lewis, 51 Conn. 113; Pedigo v. Grimes, 113 Ind. 148; Brown v. McCollum, 76 Ia. 479; Freeman v. State ex rel. McDonald, 72 Ga. 812; Ewing v. Filley, 43 Penn. St. 384; State v. Johnson, 26 Ark. 281; Govan v. Jackson, 32 id. 553; Ford v. Wright, 13 Minn. 518; Newton v. Newell, 26 id. 529; People ex rel. Budd v. Holden, 28 Cal. 123; Williamson v. Lane, 52 Tex. 335; State ex rel. Mullen v. Doherty, 16 Wash. 382; Paine on Elect. chap. 35; McCrary on Elect. sec. 391, et seq.).
By-its title this, act is “ an act to provide for a judicial recount and recanvass” of the votes cast for the office of mayor in 1905 “in all cities of the first class in which the ballots have been preserved.” In passing upon its constitutionality it lias-to be taken in its.large sense as "a whole, without tod technical a strictness in respect of fits terminology. In sum . and substance it "provides for a hearing and determination by the Supreme Court of an election contest. ■ Such hearing and determination is confined, however, to such ‘questions of law and fáct as- arise on an inspection of the ballots themselves, and they are to be decided, on fhe evidence furnished by the ballots’ alone. - --
On the petition of any. candidate it requires the Supreme Court to make a summary canvass of the vote in the. election district,.'.or districts specified in the petition. ■ The court has to appoint a commissioner or commissioners to. count the ballots on notice to all of the candidates and in their presence if they appear, the count in each election district, to be by only one commissioner. If counsel for any candidate differ from the commissioner in respect of counting a ballot, it shall be laid aside as a disputed ballot. Each commissioner submits to the court the disputed ballots together with a. written statement of his count in each election district. The court rules upon each disputed ballot..and determines its validity. The questions ■ that. may be raised are not limited, to. those that were raised on the canvass and count of the election .officials. The court makes a final order for each election district contested of the result therein. An appeal may be taken to -the Appellate Division from-[151]*151any such final order, and its decision shall be made by a final order.The' regular board authorized to issue election certificates prepares a statement- from the said final orders and from the regular returns in the election districts which have .not been contested of the number of votes cast for each candidate and issues a certificate of election to the one having the largest number. If such certificate change the. result of the election it shall supersede the certificate held by the incumbent, and no act of his thereafter shall have any' official validity or authority. The candidate receiving such new certificate shall take the office.
Such are the provisions of the statute. By the procedure which it prescribes there is a judicial hearing and determination of an election dispute. This cannot be gainsaid without disregarding the substance for the letter. That the statute does not provide for a trial of every question which might be tried in an action by the people of the state to oust the incumbent, but only of such questions as can arise on and be decided by an inspection of the ballots, does not support the contention that it does, not provide for a judicial hearing and determination. The Legislature is free to allow no judicial trial of election disputes at all, either at the suit of a candidate or of the state, from which it follows that it may allow one of a limited scope only.
■ Much may be said on the opposite side of this question, and I have not only considered but written it in order to t.est my judgment. In the last analysis, especially when the mind is freed from all verbal nets and entanglements, it seems at the best very difficult to say that there is no doubt on the matter. And that is the test of the right of courts to declare acts of the Legislature void. To depart from it is to enter into the mere rage of upsetting what the Legislature has done.
The point that such a statute may not prescribe a summary hearing, but must provide for a jury trial, under that provision of Quístate constitution which is common in the state constitutions generally throughout the country, viz., that the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever (art. 1, sec. 2), seems to be taken undena misconception. If trial by jury were used in actions of quo warranto at the time of the adoption eiolit constitution, that secures that form of trial in slicit [152]*152action or in any form óf action or proceeding substituted for it (People v. Albany & Susquehanna R. R. Co., 57 N. Y. 161). But under the common law and by statute such an action could only be brought by the sovereign. A contestant for an office could not bring any action or proceeding to oust the incumbent, dr try the right to the office; and that has remained the case in. this state down to' the present time. In creating a new action or proceeding ■—■ one that did not exist when the constitution was adopted — for the trial of disputes.of contestants of, an election at the suit of a> contestant, the Legislature is free to make it. summary or by jury trial. • That has been generally held throughout the country, as appears by the decisions of other states cited in the foregoing'.
The application should be denied.
Hooker and Rich, JJ., concurred, the latter in separate opinion; Jerks and .Miller, JJ., dissented, each writing; ..