People ex rel. Henness v. Douglass

142 A.D. 224, 126 N.Y.S. 908, 1911 N.Y. App. Div. LEXIS 286

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1911
• Status: Published

Opinion

Per Curiam :

. The defendants concede that a mandamus would lie to compel them to tile the tally sheet kept by them on the canvass of- the votes for or against proposition Ho. 2 submitted to the voters of the town under the Liquor Tax Law. (See Consol. Laws, chap. 34 [Laws of 1909, chap. 39], § 13, as amd. by Laws of 1910, chap. 485.) Confessedly the defendant inspectors have failed to do this, and they should be compelled to do so. The moving papers show that there was a "mistake made in the're turn of the defendant inspectors and that the. figures were-transposed, and that the number of votes returned “for” the second proposition was wrong and should have been returned “ against ” it. There is no dispute of this-except that certain persons aver that the vote was announced as returned and no protest made.

If in fact a mistake was made .by the inspectors in their return and the figures were transposed, the court has power by mandamus to compel them to make a true return of the .vote as actually cast and counted by them. Inspectors of election cannot be compelled to reconvene and recount the ballots cast, or to return in any particular manner, but they can be compelled to make a true statement of the result according to the count they actually made. It is their duty to make such statement and return and the function of a mandamus is to compel a public official to perform a duty where he has failed to do so.

Irrespective of the special provisions of the Election Law the court has power to compel election inspectors to «make a correct return of the ballots counted by them. (Matter of Stewart, 155 N. Y. 545; People ex rel. Smith v. Schiellein, 95 id. 124; People ex rel. McLaughlin v. Ammenwerth, 197 id. 340.)

It may be the vote was correctly returned in the present instance. If so, the defendants can so return. If the figures were transposed and the return made was a mistake, manifestly it should be corrected.

The order denying a peremptory writ of mandamus should be reversed, with ten dollars costs and disbursements, and the motion granted directing such writ, compelling the defendants to file the tally sheet in-the proper town clerk’s.office, and further directing them to make a correct return according to their count of the votes cast, without costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and order granted directing a mandamus to issue compelling defendants to file the tally sheet in the town clerk’s office of the town of Kortright forthwith, and to make a correct return of the votes cast-as counted by them upon proposition'Ho. 2, submitted to the voters under the Liquor Tax Law.