Parker, Ch. J.
Delator was a candidate for supervisor at the general election of Povember 3, 1903. According to the returns filed his opponent received one majority. Povember 21, 1903, relator obtained a writ of peremptory mandamus requiring the town board of canvassers to reconvene “ at the town clerk’s-office in the town of Ulster, on the 17th day of December, 1903, at 2 o’clock in the afternoon, and recanvass the vote cast at the election held Povember 3,1903, for supervisor of said town, and in so doing to take and use the corrected return made and filed from election district Po. 4, aforesaid, after the said recount and recanvass of the votes therein in the place of the first return made from said district.”
Delator claims that the members of the town board of canvassers or some of them failed to discharge their duty in the manner required by sections 84, 103 and 110 of the Election Law in that (1) the chairman did not read off the .split ballots ; (2) the poll clerks did not tally the same; (3) they were tallied by two inspectors; (4) they were not passed to the other inspectors for verification ; (5) defendant McPamee was allowed to handle some ballots; (6) the tally sheet in the town clerk’s office contains no entry in the proper column of the number of straight party votes counted for any candidate on the Depublican ticket; nor does it contain in the proper column any entry of the number of votes cast for relator on split ballots, but in such column it contains the words “ eleven votes ” written over an erasure; (7) the tally sheet in the county clerk’s office bears evidence of alteration as-to the vote for supervisor, and is not signed or certified,
If it is the duty of a town hoard of canvassers to reconvene and recount the ballots on their own motion upon their ■attention being called to violations of the statute by some one or more members, then the court had power to grant the writ, for the court has power to compel a recount whenever the statute places upon the town board of canvassers the duty ■of recounting. Thus section 84 of the Election Law provides that the sum of the ballots cast for any office as shown by the tally sheet must equal the number of ballots voted as shown by the ballot clerks’ return of ballots, and that “if it does not, there has been a mistake in the count, and the ballots must be recounted for such office.” In such a case, as we see, it is by the statute made the duty of the board of canvassers to recount the ballots, which means that they shall follow the procedure required by the statute for a count of ballots in the first instance. In the event of a failure to make such a recount the court may by mandamus compel it. Any duty which a statute provides that a board of canvassers shall in the future perforin may be enforced by mandamus.
Relator’s application is not based upon that section however. The facts stated in the affidavits do not bring this case within it. And counsel do not claim that any other provision of the Election Law makes it the duty of the canvassers, or permits them, to make a recount after the ballots have been placed in the ballot box, aud is locked and sealed and delivered to the custodian named in the statute ; nor have we been able to find any provision in the statute pointing in that direction. The authority of the court to issue the mandamus, therefore, cannot be rested on the ground that the court could compel the board of canvassers to take such action as the statute requires them to take, for, as we have seen, it does not require nor permit them to make a recount because of any errors or irregularities of the kind and character pointed out by relator’s affidavits.
We must, therefore, examine the Election Law to see whether it contains any provision authorizing the court to
compel a recount when facts of the nature of those stated in relator’s affidavits are brought to its attention.
Section 114 provides in express terms for a recount of ballots
objected to as marked for
identification, and gives the court power in a mandamus, proceeding to determine whether the ballot was marked for the purpose of identification, and to order that the votes thereon be excluded on a recount. The section further provides that a like writ may be issued to determine whether any ballot and the votes thereon which have been rejected by the inspectors shall be counted. It will be observed that this section does not embrace a general recount of ballots.
It is limited to ballots required to be sj>ecially retiorned
for examination by the canvassers and by the courts, and not placed in the ballot box before it is locked and sealed. It is confined to those ballots about which there is opportunity for dispute; and they are kept out of the - ballot box and attached to the returns, where the court may readily, in the event of mistake, make correction by proper order.
Rule 9, section 110, defines a void ballot, and provides that no vote upon such ballot shall be counted.
Subdivision 3, section 110, which provides for the method of counting, says that “ When a ballot is not void and an inspector of election or other election officer or duly authorized watcher shall, during the canvass of the vote, declare his belief that any particular ballot has been written upon or marked in any way for the purpose of identification, the inspectors shall write on the back of such ballot the words, ‘ Objected to because marked for identification,’ and shall specify over their signatures upon the back thereof the mark or marking upon such ballot to which objection is made.”
Section 111, which relates to the original statement of the canvass and certified copies, provides that the return of the canvass shall contain a statement of the number of ballots protested as marked for identification, and the number of void ballots; that such void and protested ballots shall be secured in a sealed package filed with the original statement
of the canvass. It is these ballots that section 114 provides may be recounted by direction of the court, and it is significant that not only is the court expressly empowered to count the ballots, and decide whether those counted were void, and whether those not counted should have been counted because they were not void; hut the section in terms provides that the court may enforce its determination by mandamus.
Ho part of that or any other section of the Election Law brought to our attention authorizes. the court to compel a recount of the ballots returned to the ballot box as by law required; but there is a section.that authorizes a county judge or a Supreme Court judge to make an order directing that the ballot boxes 11
be opened and their contents examined”
Section 111 jiro vides that after the canvass has been completed, and the proclamation of the result has been made, “
the ballots voted, except the void and protested ballots,
shall be replaced in the box from which they were taken, together with a statement as to the number of such ballots so replaced. Each such box shall he securely locked and sealed, and shall lie deposited with the officer or board furnishing such boxes.
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Parker, Ch. J.
Delator was a candidate for supervisor at the general election of Povember 3, 1903. According to the returns filed his opponent received one majority. Povember 21, 1903, relator obtained a writ of peremptory mandamus requiring the town board of canvassers to reconvene “ at the town clerk’s-office in the town of Ulster, on the 17th day of December, 1903, at 2 o’clock in the afternoon, and recanvass the vote cast at the election held Povember 3,1903, for supervisor of said town, and in so doing to take and use the corrected return made and filed from election district Po. 4, aforesaid, after the said recount and recanvass of the votes therein in the place of the first return made from said district.”
Delator claims that the members of the town board of canvassers or some of them failed to discharge their duty in the manner required by sections 84, 103 and 110 of the Election Law in that (1) the chairman did not read off the .split ballots ; (2) the poll clerks did not tally the same; (3) they were tallied by two inspectors; (4) they were not passed to the other inspectors for verification ; (5) defendant McPamee was allowed to handle some ballots; (6) the tally sheet in the town clerk’s office contains no entry in the proper column of the number of straight party votes counted for any candidate on the Depublican ticket; nor does it contain in the proper column any entry of the number of votes cast for relator on split ballots, but in such column it contains the words “ eleven votes ” written over an erasure; (7) the tally sheet in the county clerk’s office bears evidence of alteration as-to the vote for supervisor, and is not signed or certified,
If it is the duty of a town hoard of canvassers to reconvene and recount the ballots on their own motion upon their ■attention being called to violations of the statute by some one or more members, then the court had power to grant the writ, for the court has power to compel a recount whenever the statute places upon the town board of canvassers the duty ■of recounting. Thus section 84 of the Election Law provides that the sum of the ballots cast for any office as shown by the tally sheet must equal the number of ballots voted as shown by the ballot clerks’ return of ballots, and that “if it does not, there has been a mistake in the count, and the ballots must be recounted for such office.” In such a case, as we see, it is by the statute made the duty of the board of canvassers to recount the ballots, which means that they shall follow the procedure required by the statute for a count of ballots in the first instance. In the event of a failure to make such a recount the court may by mandamus compel it. Any duty which a statute provides that a board of canvassers shall in the future perforin may be enforced by mandamus.
Relator’s application is not based upon that section however. The facts stated in the affidavits do not bring this case within it. And counsel do not claim that any other provision of the Election Law makes it the duty of the canvassers, or permits them, to make a recount after the ballots have been placed in the ballot box, aud is locked and sealed and delivered to the custodian named in the statute ; nor have we been able to find any provision in the statute pointing in that direction. The authority of the court to issue the mandamus, therefore, cannot be rested on the ground that the court could compel the board of canvassers to take such action as the statute requires them to take, for, as we have seen, it does not require nor permit them to make a recount because of any errors or irregularities of the kind and character pointed out by relator’s affidavits.
We must, therefore, examine the Election Law to see whether it contains any provision authorizing the court to
compel a recount when facts of the nature of those stated in relator’s affidavits are brought to its attention.
Section 114 provides in express terms for a recount of ballots
objected to as marked for
identification, and gives the court power in a mandamus, proceeding to determine whether the ballot was marked for the purpose of identification, and to order that the votes thereon be excluded on a recount. The section further provides that a like writ may be issued to determine whether any ballot and the votes thereon which have been rejected by the inspectors shall be counted. It will be observed that this section does not embrace a general recount of ballots.
It is limited to ballots required to be sj>ecially retiorned
for examination by the canvassers and by the courts, and not placed in the ballot box before it is locked and sealed. It is confined to those ballots about which there is opportunity for dispute; and they are kept out of the - ballot box and attached to the returns, where the court may readily, in the event of mistake, make correction by proper order.
Rule 9, section 110, defines a void ballot, and provides that no vote upon such ballot shall be counted.
Subdivision 3, section 110, which provides for the method of counting, says that “ When a ballot is not void and an inspector of election or other election officer or duly authorized watcher shall, during the canvass of the vote, declare his belief that any particular ballot has been written upon or marked in any way for the purpose of identification, the inspectors shall write on the back of such ballot the words, ‘ Objected to because marked for identification,’ and shall specify over their signatures upon the back thereof the mark or marking upon such ballot to which objection is made.”
Section 111, which relates to the original statement of the canvass and certified copies, provides that the return of the canvass shall contain a statement of the number of ballots protested as marked for identification, and the number of void ballots; that such void and protested ballots shall be secured in a sealed package filed with the original statement
of the canvass. It is these ballots that section 114 provides may be recounted by direction of the court, and it is significant that not only is the court expressly empowered to count the ballots, and decide whether those counted were void, and whether those not counted should have been counted because they were not void; hut the section in terms provides that the court may enforce its determination by mandamus.
Ho part of that or any other section of the Election Law brought to our attention authorizes. the court to compel a recount of the ballots returned to the ballot box as by law required; but there is a section.that authorizes a county judge or a Supreme Court judge to make an order directing that the ballot boxes 11
be opened and their contents examined”
Section 111 jiro vides that after the canvass has been completed, and the proclamation of the result has been made, “
the ballots voted, except the void and protested ballots,
shall be replaced in the box from which they were taken, together with a statement as to the number of such ballots so replaced. Each such box shall he securely locked and sealed, and shall lie deposited with the officer or board furnishing such boxes. They shall he preserved inviolate for six months after such election, and may he opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county, and at the expiration of such time the ballots may he disposed of in the discretion of the officer or board having charge of them.”
We have, then, two provisions of the Election Law conferring authority upon the court — provisions which bear evidence of very careful consideration. The one provides for a canvass and recount of certain ballots not replaced in the ballot box, and kept out to he examined by hoards of canvass, subject to modification by the court. The other relates to the ballots directed to he replaced in the box, after which the box shall be “securely locked and sealed.” As to the ballots referred to in the last sentence, the statute does not undertake to confer-upon the court or a judge thereof the power to direct a recount'. Instead, it authorizes the court to open the
boxes and permit their contents to be examined. There the authority stops; whether wisely or not is of no consequence to the court. The power to regulate the canvass of the ballots, and the subsequent disposition of them, rests with the legislature alone. It could continue the law as it existed prior to 1896, requiring the immediate destruction of the ballots, so that the best evidence of how the people voted was swept away. But instead it provides for keeping the ballots for six months, and further provides that any one of the judicial officers named in the statute may by order permit the box to be opened and the ballots examined.
The object of the preservation of the ballots, and the granting of the power to the court to order an examination of them, would seem to be that it furnishes a further check upon the perpetration of fraud by local boards of canvassers. It accomplishes this, necessarily, because the canvassers.know that for six months after the canvass the evidence of how the people voted is to be preserved in such form that it may be used not only to deprive, possibly, the intended beneficiary of the fruit of his office, but also that it may be used against the canvassers in criminal proceedings. That, of course, must necessarily operate as a check upon those who might otherwise be persuaded into wrongdoing.
The evidence thus preserved is the best and most conclusive in proceedings in the nature of quo warranto to try the title to public office, a proceeding formerly embarrassed by the fact that the ballots had been destroyed.
The court, however, secures no more power or authority by this statute than it in terms gives. The language of section 111 considered in connection with that of section 114 makes it very clear that the legislature does not intend to permit the court to order a recount of the votes in the box. And the court has no right to take any power in the premises not granted to it. Ho one will question that the rules of construction of statutes require this court to hold that when the legislature attempts
to
confer upon the court power to order examination of the ballots the grant of power does not
extend one iota beyond its terms. A grant of power by the legislature to the court cannot be carried beyond what is fairly included in its terms. This section is not intended to confer upon a judge the power to capriciously order ballot boxes to be opened and examined, nor will it be so construed by the courts. The power is conferred to the end that it may be used in judicial proceedings pending or about to be commenced.
The purpose of the legislature in so framing the Election Law as to continue the policy of preventing the judiciary from sitting in review of the ministerial work of the board of canvassers may without difficulty be conjectured. That due and orderly procedure of the courts which so well harmonizes with judicial functions is not adaptable to the canvass of votes which the public interest, more than that of the candidates, requires should be promptly carried on. Occasions have arisen, and will again arise, where the necessity for a speedy disposition of the question of which candidate is entitled to the office is of far more importance than whether the person elected shall lose it.
It is not many years ago when- the result in this state wras so close on a presidential election that there was great public excitement, charges being made on both sides that representatives of the opposite party were contemplating a subversion of the will of the people as expressed at the polls, and counsel being selected by the representatives of both parties to protect, in the various sections of the state, the interests of the organization employing them as against the contemplated frauds of the other side. Fortunately our system of ascertaining the outcome of elections made it possible that the result should be known in a short time. But suppose the law had then permitted what relator’s counsel urges we should imply it to mean now — that upon an affidavit asserting that the chairman did not read off the split ballots or that the poll clerks did not tally the same or that they were tallied by two of the inspectors or any one or more or all of the facts stated in the moving affidavits, any one or all of the county judges
and Supreme Court justices could grant orders requiring a recount of the ballots-—would that aroused public sentiment have been allayed as promptly as it was? And promptly as it was allayed, all who remember the circumstances will concede that it was not allayed too soon.
Dispatch as well as accuracy is aimed at by the Election Law. The canvass must he made openly and promptly, and under such safeguards as the legislature has prescribed as tending most strongly toward a fair result. The next step is the canvass by the county hoard of canvassers, who by section 130 of the Election Law are required to meet at the county clerk’s office on the Tuesday next after eacli election. That hoard is required to proceed at once, and caution on its part is provided for with the object of securing a final canvass of the vote of the county with all reasonable expedition, to the end that it shall in turn he forwarded to the secretary of state.
Now, election in 1903 occurred on November 3d. Under this statute the board was required to meet on the 10th. Ordinarily its work would have been completed four or five days later, and the necessary certificate would have been forwarded to the secretary of state. But the application of relator for the mandamus was made November 21, the rehson assigned for the delay being that the first Special Term of the district after the making of relator’s affidavit (November 14) was to be held in Troy, November 21. Undoubtedly relator moved with all convenient speed, and if the court had the power to grant the writ of mandamus relator was within his rights.
If such were his rights then equally are they the rights of ¿very other candidate for public office elected at an annual election under the General Election Law, so that whether he is a candidate for supervisor, state senator, member of congress, governor, oris a presidential elector, it matters not, for if one has the right to invoke the aid of the courts to order a recount of the ballots, all have, and if the power exists in the courts to order a recount for the purpose of affecting the can- ' vass of the votes, and bringing about a different result than a
canvass or several canvasses showed on its or their face, it can and will employ the ordinary and usual procedure, which in this case, by reason of the non-existence of a Special Term in the third district, postponed the hearing of the application for the writ until after the time when ordinarily the results of the canvass would have been forwarded to the secretary of state, while the writ of mandamus was granted on November 21 commanding the town board of canvassers to convene for the purpose of making the recount on December 17, a much later date than, that at which hoards of canvass are required to present the results of the canvass of the county to the state.
It may well be that so leisurely a method would not have been employed had it seriously involved the state canvass; but if the court has any power at all, its action was within it, and it serves to illustrate what could, and probably would, happen in the event of a very close contest in the state involving, for instance, so important and powerful an office as that of governor. The public interest — as distinguished from the interests of the individual candidates, and which is the paramount interest — experience teaches is best subserved by prompt news of the result, such as our Election Law is intended to bring about; and the protection of the rights of the candidate is assured, so far as it is possible for the law to assure it, by throwing around the casting and counting of the ballots all of the safeguards deemed necessary, and by providing for the preservation of the ballots under lock and seal for six mouths, to the end that conclusive evidence may be produced if a proceeding in the nature of quo warranto is taken by a counted out candidate for the purpose of establishing his title to the office.
I advise that the law be left as the legislature wrote it.
The order should be reversed, with such costs as are allowable in mandamus proceedings in all courts, and proceedings dismissed.