board. The judiciary is prevented from interfering with the ministerial duties of election officers. People ex rel. Brink v. Way, supra; Hearst v. Woelper, 183 N. Y. 274, 76 N. E. 28; Section 6 of article 2 of the Constitution of the state of New York. In the absence of statutory authority, the court has no power to order a voting machine or a ballot box opened. Matter of Thomas, 216 N. Y. 426, 110 N. E. 762.

[4] Petitioner bases his right to relief upon the provisions of section 333 of the Election Law. This section reads as follows:

"The Supreme Court or a Justice thereof may direct the examination by any candidate or his agent of any ballot or voting machinę upon which his name appeared, and the preservation of any ballots in view of a prospective contest, upon such conditions as may be proper."

While this section is general in its terms, what has already been said shows that the Legislature never intended to give to the court authority to arbitrarily or capriciously order voting machines to be opened and examined. The statute should not be given such a construction. People ex rel. Brink v. Way, supra; Matter of Whitman, 185 App. Div. 228. 233, 173 N. Y. Supp. 158.

[5] The purpose of this section was to preserve evidence for some candidate, who had commenced or was about to commence an action in the nature of a quo warranto to contest the right of his opponent to an office. This is evident from the last part of the provision which provides for "the preservation of any ballots in view of a prospective contest." The section is a part of article 14, which pertains to judicial proceedings. This purpose is also apparent if we turn to the article pertaining to voting machines, and examine section 266, where we will find a provision authorizing the board of canvassers to summon the inspectors of election, whenever it appears that there is a discrepancy in the returns of any election district, and have them open the counter compartment of the machine, if necessary, and recanvass the vote cast thereon. This provision is mandatory on the part of the board of canvassers and the inspectors of election. The court does not instigate this proceeding, and has no part therein. If the board should arbitrarily refuse to do its duty, mandamus would lie. In view of section 266, section 333 is surplusage, unless it was intended thereby to preserve evidence for some candidate who had commenced or was about to commence a quo warranto action.

[6] Before 1896 all ballots used at an election were destroyed immediately. Section 111 of the Election Law enacted in that year (Laws 1896, c. 909), provided that all ballots voted, with the exception of those which were void or protested, should be preserved inviolate for six months after the election, and that the boxes might be opened and the ballots examined upon an order of the Supreme Court, or a Justice thereof, or a county judge. The section merely permitted an examination of the ballots; it did not authorize a recanvass or a recount. The similarity of that section and section 333 of the present law is very striking. It was held, in Matter of Election of Member of Assembly, 18 Misc. Rep. 391, 43 N. Y. Supp. 710, that under the provisions of the statute of 1896, a ballot box could not be opened except for the purpose of aiding a criminal prosecution, or in a civil action or proceed

(202 N.Y.S.)

ing, where the court could make a decision binding upon the parties and the public.

It was held, in Matter of Whitman, 225 N. Y. 21, 121 N. E. 485, that the court might properly withhold the right of a candidate to examine the ballots used at an election, under section 374 of the former Election Law, which is one of the sources of section 333 of the present act, until after the canvass of all votes had been completed.

Judge Pound, writing for the Court of Appeals, in Smith v. Wenzel, 216 N. Y. 421, 425, 110 N. E. 768, 769, says:

"Doubtless it is a safe and sound practice to distinguish carefully between a recount and recanvass of ballots and an examination thereof merely to preserve evidence for use in an action in the nature of quo warranto to try title to public office, and thereby to sustain the underlying principle of the Election Law which prevents the courts from reviewing the ministerial work of inspectors and canvassers in counting and canvassing votes."

[7, 8] If I am right in my conclusions, section 333 does not give the court authority to order the machines opened at this time. No action or proceeding is pending to try the title to said office. Petitioner is not in a position to commence such an action, because no such action can be commenced until some one actually has title to the office. No official announcement of the election has been made, and no certificate of election has been issued. The only way the determination of that board can be reviewed is by a quo warranto proceeding, in which the questions of fact must be determined by a jury. Such an action cannot be brought by the petitioner; it must be brought in the name of the people of the state. Matter of Metz v. Maddox, 189 N. Y. 460, 82 N. E. 507, 121 Am. St. Rep. 90. It cannot be brought without the consent of the Attorney General. He may arbitrarily refuse to give such permission. Therefore petitioner is not in a position at this time to make this application under section 333.

[9] Even if I am wrong in my conclusions already reached, I do not believe that petitioner is entitled to an order permitting him to examine all the machines used in the recent election in Syracuse. Concededly the right to such examination rests in the sound discretion of the court. Leave to make a promiscuous or arbitrary examination of the machines, without good cause shown, would be an abuse of discretion. This brings us to a discussion of the reasons why petitioner thinks that he should be afforded the relief asked.

Syracuse has 19 wards, and 126 election districts. The petitioner complains of irregularities or discrepancies in 37 districts, and makes no suggestion of any error or mistake in any of the other 89 districts. There is no claim of fraud in any district.

The alleged discrepancies or irregularities complained of may be classified as follows: (1) That there are more blank ballots for the office in question than the petitioner thinks were actually cast. (2) that the official returns differ in certain instances from those published in the daily papers. (3) That certain returns are written in pencil rather than ink. (4) That absentee ballots in one district were not properly distributed. (5) That the inspectors in one district made arbitrary additions to the vote of both candidates, equal in number to each candi

date. (6) That in certain of the districts the total number of votes cast for the office of president of the common council is not given. (7) That certain returns are not properly certified. (8) That discrepan cies exist in certain districts between the returns filed with the board of canvassers, the city clerk, and the police department. (9) That the figures in certain returns are illegible.

We may summarily dismiss the suggestion that there are more blank ballots than petitioner thinks there should be. At best that is a mere surmise or speculation on the part of the petitioner, without any basis therefor. As indicative of the reliance to be put upon petitioner's conjecture, it might not be out of place to call attention to the fact that the official returns of the election held in Syracuse two years ago, when petitioner was a candidate for, and was elected to, the same office for which he was a candidate at the recent election, show that there were 4,312 blank votes cast for president of the common council. Petitioner alleges that there were approximately 4,500 blank votes cast at the recent election. Voting machines always show a considerable number of blank votes for every office.

Of course the official returns differ from the figures published in the newspapers on election night and the following day. No one ever knew the vote as published by the papers to coincide exactly with the official vote. In the hustle of the press to get the results, and in the haste with which their blanks are filled out by any one who happens to be handy before the result is formally announced, and the subsequent haste of getting out the various editions, it is not surprising that errors creep into the published figures. The only surprise is that the press is able to give the results as accurately as they do. The slight discrepancies here shown are not entitled to consideration.

The Election Law requires the returns to be filled in in ink. That a pencil was used in certain instances does not affect the accuracy of the figures.

It is alleged upon information and belief that in one district four absentee votes were not properly distributed, but it is not stated in what particular. No proof is offered to substantiate petitioner's belief. Such an allegation is insufficient to warrant a court to act in a matter of this kind.

It is claimed that in the Third district of the Eleventh ward there were 17 absentee votes cast, and that the whole number were arbitrarily added to the vote of all candidates on both the Republican and Democratic tickets. Mr. Carlson's affidavit shows that these figures were disregarded in canvassing the returns, and that there were no absentee ballots delivered to the inspectors of election in said district. This objection would not seem to demand the opening of the machine in that district. If it be found that Mr. Carlson's statement is incorrect, the error could doubtless be taken care of in another way.

The fact that certain returns were not properly certified is insufficient to warrant the opening of the machines in those districts. The inspectors should be called in to rectify their mistake.

The objection that the whole number of votes cast was not inserted in the returns in certain of the districts is entitled to serious considera

(202 N.Y.S.)

tion. Without this information it is impossible to determine from the returns whether the total votes credited to each of the candidates for said office in such districts exceed the total votes cast as recorded on the machine. The affidavit of Mr. Carlson, one of the commissioners of election, states that a count of the signatures of the voters in these districts contained in the general election poll book, shows that the whole number of votes cast for president of the common council exceeded the total vote given to the petitioner and his opponent. While that method of determining the total votes cast in any district is probably accurate, it may possibly be open to some criticism.

The objection that the figures in certain of the returns are blurred and illegible reveals a condition which I think should be cleared up. Likewise any discrepancies in the vote of petitioner or his opponent, as shown by the returns filed with the police department and the commissioners of election, constitute an objection entitled to serious consideration.

[10] The moving papers disclose but 6 districts in which there appear to be any actual discrepancies between the returns filed with the police department, city clerk, or board of canvassers, and 4 districts in which the figures in the return are illegible. This makes only 10 districts in which there is a complaint or any serious irregularity or discrepancy. Discrepancies or uncertainty in 10 districts would not warrant the court in ordering the machines in the other 116 districts opened, even if the section in question gave the court the power so to do.

It is clear that the court has no authority to grant the relief asked for, and that the motion must be denied. This opinion might well stop here. However, owing to the importance of this matter and the likelihood of it coming before the board of canvassers in another form, and the need for speedy action, I feel justified in going farther, and outlining a method of procedure, even though these questions are not before me, and what I say is obiter dictum.

I believe that petitioner is not without relief, but that he has mistaken his remedy. He may demand of the county board of canvassers that they proceed under section 266 of the Election Law, and call in the inspectors in those districts where there are discrepancies in the returns, and have them correct the errors and supply the omissions, and when necessary open the machines and recanvass the votes.

That section is broad enough to cover this situation. All of the complaints alleged in the moving papers are discrepancies within the meaning of that term as there used. Smith v. Board of Canvassers, 92 Misc. Rep. 607, 156 N. Y. Supp. 837. They involve matters within the powers and duties of the board of county canvassers as defined by the Election Law. Under this section all this work would be done by the ministerial boards charged by the law with the duty of conducting elections and canvassing the vote.

That board is still in session. I have no doubt but what they will promptly and willingly perform their duty. If not, mandamus will lie to compel them so to do.

Petitioner calls attention to the last sentence of section 266, which reads as follows:

"However, nothing contained in this section shall authorize any change in the returns filed by inspectors of election in any election district nor authorize any board of canvassers in any wise to consider or act upon any recanvass of votes made pursuant thereto."

Petitioner urges that any information obtained from an examination of the machines under the provisions of that section would be unavailing, because he could not avail himself of any evidence thus found on account of the prohibition above quoted. This provision is new, and when casually read may cause some confusion. If petitioner proceeds under section 266 he is in no different position than he would be if the machines were to be opened by order of the court. He cannot have a recount or recanvass under section 333. He can get the same information whether the machines are opened under section 266 or 333. The last sentence of section 266 does not deprive the petitioner of taking advantage of any error in the returns which may be discovered by an inspection of the machines. The court has inherent power, independent of the election law, to compel inspectors to make a true return, and to perform their clear duty. Smith v. Wenzel, 216 N. Y. 421, 425, 110 N. E. 768; Matter of Stewart, 155 N. Y. 545, 50 N. E. 51; People ex rel. McLaughlin v. Ammenwerth, 197 N. Y. 340, 90 N. E. 973; People ex rel. Henness v. Douglass, 142 App. Div. 224, 126 N. Y. Supp. 908. This sentence in question uses the words "this section" and not "this act." Section 266 does not provide a remedy, but, with the information obtained through the relief afforded by that section, petitioner is still at liberty to pursue the remedy given in any other section of the act. This is pointed out as to ballots in Matter of Weinfeld, 203 App. Div. 778, 197 N. Y. Supp. 138.

It may not be out of place for me to suggest what, in my opinion, the board of canvassers should do, if application is made to them under section 266, and in fact what I believe they should do so on their own motion, now that their attention has indirectly been called to certain irregularities.

The board of canvassers should summon the inspectors of election of the various districts, where the returns are not properly certified, so that they may make the proper certificate. In those districts where the returns do not show the total number of votes cast for the office of president of the common council, the inspectors should be summoned before the board, and be required to insert that number in the return. That can easily be done by looking at the public counter on the machine and adding to the number shown thereon the number of absentee votes cast in the district.. The number of absentees votes in each district is on file in the office of the board of elections. The public counter on the machine can be examined without much work. It will not be necessary to open the counter compartment.

In those districts where the figures on the returns are blurred and illegible, or where there are discrepancies between the returns filed with the board of canvassers, the city clerk, and the police department, and in any district in which the public counter has been examined and the total number of votes cast exceeds the sum total of votes cast for the various candidates for president of the common council, as shown by said returns, the inspectors of election should be summoned