The relator and the respondent Chambers were candidates for the office of alderman from the twenty-eighth district of the city of New York at the general election held in November, 1901. On the face of the returns of the election inspectors Chambers appeared to have been elected by a plurality of sixteen. On an application made to the Supreme Court, Mr. Justice LEVENTRITT, on an examination of the void and protested ballots contained in the envelopes, rejected twenty-three as void, and directed the board of county canvassers to rednce the apparent plurality to eight votes. Subsequently the relator filed a protest with the board of aldermen chosen at said general election, claiming that he instead of Chambers was elected as a member of that body. The protest
was referred to a committee, a majority of which reported that he was elected by a plurality of one hundred and three votes. The minority reported that Chambers was elected by a plurality of seventy-three votes. The board adopted the report of the minority and dismissed the application of the relator. Thereupon the relator sued out a writ of certiorari on the return to which the Appellate Division affirmed the proceedings of the board of aldermen.
It appears from the opinion rendered that the learned Appellate Division construed the provision of section 27 of the charter of the city of New York, "The board of aldermen * * * shall be the judge of the election returns and qualifications of its members, subject, however, to review by certiorari before any court of competent jurisdiction" as limiting the board to an examination of the election returns and not authorizing an inquiry of who, in fact, was legally elected. This result is reached by treating the word "election" adjectively as qualifying returns, a use claimed to be justified by the absence of any comma between the two words. We think this construction is wholly inadmissible. The provision that a legislative body shall be "the judge of the election returns and qualifications of its members" is of such general enactment in constitutions and statutes in this country that its construction does not fairly admit of dispute. It is found in the Federal Constitution, in that of this state and in those of at least twelve other states, not only in the very same words but in the same sequence of words, "the election(s) returns and qualifications" of its members. In about one-half of these cases the word is in the singular, "election," and in about the same number there is no punctuation mark between the words "election" and "returns." Under this authority each house of Congress and each branch of the state legislature has exercised the most plenary power to determine who has been elected members of the body. Indeed, it has been generally assumed by publicists and writers on constitutional law that the absolute right of determining the election of its members is a power necessary to the independence of the legislative
branch of the government. While, of course, this consideration does not apply to a municipal corporation, still it has been a very common (though not universal) practice to confer upon the boards of aldermen of municipalities or their legislative assemblies the same power on the subject as that possessed by the legislature. There is this distinction between the two. The action or determination of a house of the legislature is final, while that of a municipal assembly or chamber is subject to review by the courts even without express declaration to that effect unless it has been enacted in the charter to the contrary. This practice has prevailed in this state in the enactment of the charters of the cities. In that of the former city of Brooklyn it was enacted that the common council should be "The sole judge of the qualifications, elections, and returns, of its members." This language would seem to admit of no question. In the general act for the government of cities of the second class (Chap. 182, Laws of 1898) by section 17 it is enacted the common council shall be "the judge of the elections, returns and qualifications of its members." He we find "elections" in the plural followed by the comma. The construction of this language also seems very clear. In fact, we may say that the expression "election returns and qualifications" has so well defined and settled a meaning in American jurisprudence that its construction cannot be varied by the presence or absence of punctuation marks or by the use of the words either in the singular or in the plural. The board of aldermen had, therefore, full power to determine who was legally elected to the office, the relator or the respondent.
We appreciate the argument of the learned court below that since full and adequate machinery is now provided for the speedy review of errors of inspectors of election in counting or rejecting ballots, it is not necessary or wise that the board of aldermen should go behind the election returns. The argument would seem, however, to prove that the whole authority to determine the election returns of its members, whether we construe that as meaning election and returns or election-returns is no longer necessary, a proposition we are
by no means prepared to deny. So far as a determination can be based on election returns that determination is made by the board of canvassers. It is of a purely ministerial character and any error made in the determination can be summarily corrected by the courts. A second examination of the face of those returns would seem to be wholly unnecessary and to subserve no practical purpose.
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The relator and the respondent Chambers were candidates for the office of alderman from the twenty-eighth district of the city of New York at the general election held in November, 1901. On the face of the returns of the election inspectors Chambers appeared to have been elected by a plurality of sixteen. On an application made to the Supreme Court, Mr. Justice LEVENTRITT, on an examination of the void and protested ballots contained in the envelopes, rejected twenty-three as void, and directed the board of county canvassers to rednce the apparent plurality to eight votes. Subsequently the relator filed a protest with the board of aldermen chosen at said general election, claiming that he instead of Chambers was elected as a member of that body. The protest
was referred to a committee, a majority of which reported that he was elected by a plurality of one hundred and three votes. The minority reported that Chambers was elected by a plurality of seventy-three votes. The board adopted the report of the minority and dismissed the application of the relator. Thereupon the relator sued out a writ of certiorari on the return to which the Appellate Division affirmed the proceedings of the board of aldermen.
It appears from the opinion rendered that the learned Appellate Division construed the provision of section 27 of the charter of the city of New York, "The board of aldermen * * * shall be the judge of the election returns and qualifications of its members, subject, however, to review by certiorari before any court of competent jurisdiction" as limiting the board to an examination of the election returns and not authorizing an inquiry of who, in fact, was legally elected. This result is reached by treating the word "election" adjectively as qualifying returns, a use claimed to be justified by the absence of any comma between the two words. We think this construction is wholly inadmissible. The provision that a legislative body shall be "the judge of the election returns and qualifications of its members" is of such general enactment in constitutions and statutes in this country that its construction does not fairly admit of dispute. It is found in the Federal Constitution, in that of this state and in those of at least twelve other states, not only in the very same words but in the same sequence of words, "the election(s) returns and qualifications" of its members. In about one-half of these cases the word is in the singular, "election," and in about the same number there is no punctuation mark between the words "election" and "returns." Under this authority each house of Congress and each branch of the state legislature has exercised the most plenary power to determine who has been elected members of the body. Indeed, it has been generally assumed by publicists and writers on constitutional law that the absolute right of determining the election of its members is a power necessary to the independence of the legislative
branch of the government. While, of course, this consideration does not apply to a municipal corporation, still it has been a very common (though not universal) practice to confer upon the boards of aldermen of municipalities or their legislative assemblies the same power on the subject as that possessed by the legislature. There is this distinction between the two. The action or determination of a house of the legislature is final, while that of a municipal assembly or chamber is subject to review by the courts even without express declaration to that effect unless it has been enacted in the charter to the contrary. This practice has prevailed in this state in the enactment of the charters of the cities. In that of the former city of Brooklyn it was enacted that the common council should be "The sole judge of the qualifications, elections, and returns, of its members." This language would seem to admit of no question. In the general act for the government of cities of the second class (Chap. 182, Laws of 1898) by section 17 it is enacted the common council shall be "the judge of the elections, returns and qualifications of its members." He we find "elections" in the plural followed by the comma. The construction of this language also seems very clear. In fact, we may say that the expression "election returns and qualifications" has so well defined and settled a meaning in American jurisprudence that its construction cannot be varied by the presence or absence of punctuation marks or by the use of the words either in the singular or in the plural. The board of aldermen had, therefore, full power to determine who was legally elected to the office, the relator or the respondent.
We appreciate the argument of the learned court below that since full and adequate machinery is now provided for the speedy review of errors of inspectors of election in counting or rejecting ballots, it is not necessary or wise that the board of aldermen should go behind the election returns. The argument would seem, however, to prove that the whole authority to determine the election returns of its members, whether we construe that as meaning election and returns or election-returns is no longer necessary, a proposition we are
by no means prepared to deny. So far as a determination can be based on election returns that determination is made by the board of canvassers. It is of a purely ministerial character and any error made in the determination can be summarily corrected by the courts. A second examination of the face of those returns would seem to be wholly unnecessary and to subserve no practical purpose.
Though we differ from the learned Appellate Division in its construction of the charter we think that the record before us presents no question of law for our review. We did not hold inCity of Niagara Falls v. N.Y.C. H.R.R.R. Co. (168 N.Y. 610) and in People ex rel. Sands v. Feitner (173 N.Y. 647) that this court is prohibited by the Constitution and the statute from reviewing a unanimous affirmance by the Appellate Division of the findings of either ministerial tribunals or quasi legislative bodies. Nevertheless with controverted questions of fact we cannot deal. Presumptively the determination of who has received a plurality of votes and has been elected to an office presents an issue of fact of, at least, may present an issue of fact. It may be that in some election controversies there is no dispute as to the facts and that the case turns wholly upon questions of law. In such cases, and in those in which, though depending partly on issues of fact, errors of law are complained of, in order for this court to review the decision the question of law must be presented in such form that we may clearly see what disposition was made of it in the court below and how it affected the result reached. In People ex rel. Feeny v. Board ofCanvassers (156 N.Y. 36) it was held that whether a ballot was so marked as to be void presented a question of law to be determined on the face of the ballot, and to that decision we adhere. But the difficulty in the present case is that the return does not show what the action of the board of aldermen or of the minority of its committee, whose report it adopted, was on specific ballots. The relator seeks to supply this defect by statements in his petition for the writ that certain ballots were conceded by both parties to be valid and
others were contested, and that the contested ballots were marked by the committee. It further states that certain ballots, giving their number, were rejected by the committee and the remainder of the number declared good, and a summary of the result of the canvass of the ballots as made by the majority of the committee. But the action of the minority of the committee, which by adoption became subsequently the action of the board, is not given. It may be possible (though I do not think so) for us to discover by diligent search what ballots have been held good by the board of aldermen and what bad. The ballot boxes have been brought to this court, but there cannot be imposed upon us the duty of a recount and recanvass of the ballots cast. If the relator sought to review, as a question of law, the validity of various ballots, he should have applied for a writ requiring the board of aldermen to specifically return the number of uncontested ballots given for each party, the ballots in dispute and its action or determination on each of such disputed ballots, and the grounds therefor. This appeared in the Feeny case. No such return is before us.