Matter of Whitman. No. 1

I am unable to concur with the majority of the court that the order appealed from should be reversed. The order is not a final one. It does not finally determine the special proceeding in which it was made. Therefore, this court has no jurisdiction to hear the appeal. (Code of Civ. Pro. sec. 190, subd. 1.) That it is not a final order seems to me clear when the provisions of the order and the statute under which the proceeding was instituted (Sec. 381 of the Election Law, as amended by chap. 821 of the Laws of 1913) are considered. This section reads as follows: "Judicial investigation of ballots. If any statement of the result of the canvass in an election district shall show that any of the ballots counted at an election therein were protested or were canvassed as wholly blank or void, a writ of mandamus may, upon the application of any candidate voted for at such election in such district, within twenty days thereafter, issue out of the supreme court to the board or body of canvassers, if any, *Page 17 of the return of the inspectors of such election district, and otherwise to the inspectors of election making such statement, requiring a recanvass of such ballots. If the court shall, in the proceedings upon such writ, determine that any such ballot was improperly canvassed, it shall order the error to be corrected. Boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings."

The respondent was a candidate for governor of the state of New York at the general election held on November 5, 1918. He presented a petition showing that fact; that original statements of the result of the canvass filed by the inspectors of election in the various election districts in the county of Richmond with the clerk of that county showed certain of the ballots counted by such inspectors were protested or canvassed as wholly blank or void; that a detailed statement thereof was set forth in a schedule attached to the petition; and asked that a writ of mandamus issue under the section of the Election Law quoted, requiring the board of canvassers to recanvass said ballots returned as wholly blank, void or protested; and in order that such writ might issue, the court order such ballots be brought before it and judicially passed upon.

Upon this petition the other candidates for governor and the board of canvassers of Richmond county were ordered to show cause at a Special Term of the Supreme Court, at a time and place named, in Richmond county, why a writ of mandamus should not issue out of the court directing the board of canvassers of Richmond county to recanvass all such ballots returned by such inspectors as being wholly blank, void or protested, and why the court should not, for the purpose of issuing such mandamus, judicially review all such ballots as required by section 381 of the Election Law; and that the clerk *Page 18 of Richmond county produce before the court, for judicial examination, on the return of the order, all said packages of void, protested and wholly blank ballots filed with him.

Upon the return of the order to show cause the relief asked for by the petitioner was granted. An appeal was then taken by the appellant, who was also a candidate for governor at the same election, to the Appellate Division, second department, which modified the order so that it should read as follows:

"Ordered, that the said motion of Charles S. Whitman for a judicial review of the ballots cast be granted, and it is further

"Ordered, that the Clerk of the County of Richmond produce the packages containing the protested, void and blank ballots at the Special Term of the Supreme Court for Richmond County at 10 A.M. on Monday, December 2, 1918, where these proceedings are pending. That upon the result of such judicial review a writ of mandamus may issue to the County Canvassers as the Special Term may direct." Application was made for permission to appeal to this court, which was denied, and the present appeal then taken.

This is a special proceeding instituted for the sole purpose of obtaining a judicial review of the protested, void and wholly blank ballots, to the end that if errors be discovered, the canvassers of Richmond county may be directed to correct same. The order appealed from is in the nature of a subpœna ducestecum requiring the clerk to produce the ballots in order that the court may determine whether the inspectors of election properly canvassed such votes. When the sealed packages containing these ballots are produced by the clerk in obedience to this order, they will be opened in the presence of the court and it will then determine whether errors have been made and if so an order will be made directing that *Page 19 a mandamus issue, directed not to the clerk of Richmond county, but to the canvassers thereof, that they recanvass these ballots and correct the error which has been made. If errors be not discovered, then the application for the writ will be denied. Such order, either granting or denying the writ, is the final one in this proceeding, since it terminates it.

A majority of the court, however, is of the opinion this is a final order under section 374 of the Election Law. This view, it seems to me, is erroneous and in effect this court has so held. (Matter of Smith v. Wenzel, 216 N.Y. 421.) Section 374 deals not with the recanvass or recount of any ballots. It relates only to their preservation, and inspection by a candidate. (People exrel. Brown v. Freisch, 215 N.Y. 356.) It provides that after the last tally sheet and returns are completed and all stubs and ballots, except the protested, void and wholly blank ballots, are replaced in the boxes from which they were taken, each box shall be securely locked and sealed and deposited by an inspector designated for that purpose with the officer or board furnishing it, together with the separate sealed packages of unused official ballots. The protested, void and wholly blank ballots are never put into the boxes mentioned in section 374. They are put into a sealed package by themselves (Section 369) and are required to be preserved as provided in section 437.

It is true that section 374 provides that any candidate shall be entitled as of right to an examination in person or by authorized agents of any ballots upon which his name lawfully appeared as that of a candidate. But this application is not for an inspection of the ballots in the boxes which have been "securely locked and sealed." It is for a recount or recanvass by the court of the "protested, void and wholly blank ballots" put by themselves in a sealed package and delivered to the county clerk. *Page 20

The object sought to be accomplished by the examination provided for in section 374 is 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." (Matter of Smith v. Wenzel, supra, p. 425.) No recount or recanvass is provided for or permitted.

Section 381 provides not for an inspection, but for a recount and recanvass by the court of the protested, void and wholly blank ballots. (People ex rel. Brown v. Freisch, supra.) It is a proceeding for the correction of error in the election district statement. This court so held in Matter of Smith v.Wenzel (supra, p. 425) and People ex rel. Brown v.Freisch (supra). The authority given to the court is limited to a review of the protested, void and blank ballots returned by the election officers in the sealed packages. The court has no power to command a recount of all the ballots. (People ex rel.McLaughlin v. Ammenwerth, 197 N.Y. 340.) Its power is limited to a recount of (1) protested ballots; (2) void ballots, and (3) blank ballots. The order appealed from is but a step in the proceeding instituted for the purpose of procuring a recount of such ballots. There cannot be a final order in the proceeding until after the clerk produces these ballots and they have been recounted by the court.

The appeal, therefore, should be dismissed. This view renders it unnecessary to pass upon the other questions discussed in the prevailing opinion.

CHASE, CUDDEBACK and HOGAN, JJ., concur with COLLIN, J.; CRANE, J., concurs in opinion; HISCOCK, Ch. J., and McLAUGHLIN, J., dissent and vote to dismiss the appeal on opinion by McLAUGHLIN, J., in which HISCOCK, Ch. J., concurs.

Orders reversed and proceedings dismissed. *Page 21