The complaint is based upon sections of a statute passed in 1895, which, as amended in 1897, appear as §§ 1683 and 1684 in the Revision of 1902. This Act, entitled "An Act to secure Correct Returns by Moderators of Electors' Meetings," in substance provides that a judge of the Superior Court, or the Supreme Court of Errors upon an appeal in the form of a certificate transmitted by the judge, may, during the period between the day of a State election and the day fixed for the completion of the canvass of the votes by the constitutional board of canvassers, correct the list of votes given at any electors' meeting, prepared and certified at that meeting and transmitted to the secretary of State in the manner prescribed in the Constitution.
Where the title to an office is in issue in an action brought against a de facto possessor by a de jure claimant affirming his election to office, the court may determine the very right of the election, and, in this investigation, is not necessarily bound by acts of the ministerial officers who conducted the process of election; and where an office is created by statute, or where a statute alone regulates the mode of ascertaining the result of an election to office, it may provide for an action which shall judicially determine the conflicting rights of claimants under an election, before either has taken possession of the office. But an Act of the legislature which authorizes a court to intervene and control the action of executive officers in ascertaining the result of a State election, during the process of ascertaining that result as prescribed by the Constitution, presents a novel question, involving, according as the provisions of the Act may be construed, other questions of the highest importance.
We cannot review the action of the Superior Court judge without passing upon these questions, or some of them. *Page 600 But we cannot adjudicate any question involved in the judge's action, not even the preliminary one of the validity of the application, unless that action is brought before us for review by some process authorized by law. This "appeal" is not such process. The appeal was allowed after the time, within which any action of this court to effectuate the purpose contemplated by the Act could be taken in accordance with its provisions, had expired. It is plain, and admitted, that the appeal does not follow the method prescribed by the Act of 1895 for transferring to this court the questions raised before the judge. It is evident from the nature and purpose of the Act that the method prescribed is intended to be exclusive of any other method. For this reason, and because the certificate before us is not a final judgment within the meaning of the statute authorizing appeals to this court, the appeal is not authorized by § 807 relating to appeals from the final judgments of a judge of the Superior Court. The case must therefore be dismissed.
It is ordered that the case be erased from the docket.
In this opinion the other judges concurred.