I must dissent from the opinion in this case. Its adoption amounts to a judicial amendment of the Election Law. The order for the writ in this case does not, as the opinion seems to assume, provide for the opening of the election ballot boxes and their examination, simply, as is permitted by section 111 of the Election Law; it undertakes to accomplish something very different, as its mere reading, even as modified by the opinion, will show. The defendants, who were the election inspectors, are, in effect, to recanvass the ballots cast at the election in accordance with the directions of the order. They are to make certain indorsements upon the ballots which are in the sealed ballot boxes and they are to return them separately, with a statement of their recount; notwithstanding that the ballot boxes are to be kept inviolate by law. The Election Law, to which the relator appeals and upon which the order for the writ, in terms, is based, in regulating the conduct of elections, provides for the issuance of the writ of mandamus in only two cases. Section 114 provides for such a writ, in review of the action of the election officers, when what is sought is the recount of the ballots which have been marked for identification, or a determination whether ballots rejected as void shall be counted. Section 111 of the Election Law, expressly, requires the ballots which have been voted to be placed in a ballot box, which is to be locked, sealed and preserved inviolate for six months after the election, and provides that they may be only opened and their contents examined when so ordered by the court. The only ballots, which may be brought into court through the instrumentality of a writ of mandamus, are those which, under section 111, were "secured in a separate sealed package" as having been marked for identification *Page 273 or rejected as void. These special provisions of sections 111 and 114, necessarily, exclude by implication any right to the writ of mandamus for the purpose of a recount of the ballots, which are in the sealed ballot boxes, or for any purpose having to do with the handling of such ballots, or with the alteration of the result certified as to such ballots. If the action of the officers with respect to the ballots placed in the sealed ballot boxes is to be the subject of judicial review, it is only possible through a judicial proceeding, in which the right of the incumbent of the office is in contest. Naturally, for the purpose of such a proceeding the court may order, under the provisions of section 111, the opening of the boxes and the examination of their contents; which would then be done, with proper safeguards, by, or under the supervision of, the court. Within the intendment of the Election Law, as is, indeed, the fact, the sealed ballot boxes with their contents, upon the close of an election, have passed out of the hands of the election inspectors. The opinion, therefore, advises a violation of the provisions of the Election Law and is in conflict with what we have held in the cases ofMatter of Hearst v. Woelper, (183 N.Y. 274), and of Peopleex rel. Brink v. Way, (179 ib. 174).
That any inherent power resides in the court to make the order, either as it originally was made, or as the opinion modifies it, is, of course, inconceivable, when the Election Law specifies the cases, in which the writ of mandamus may issue to review the acts of the election inspectors.
There is good reason for confining the issuance of the writ of mandamus to the cases specified in section 114. The purpose of the provision of that section and of section 111 is that the results of an election shall not be kept in doubt, nor the public mind be kept in agitation, by ill advised, or frantic, applications of defeated candidates for orders, generally, reviewing the action of the inspectors of election; whether by way of a recount of the ballots voted, or, as it will be in the present case, by ways which result in a recount. The formalities of the Election Law having been complied with, the result may only be contested *Page 274 in two ways; partially, by the summary method of mandamus proceedings to review the decision of the inspectors upon the protested, or void, ballots; or, wholly, through the orderly procedure of an action in the nature of quo warranto, instituted by the defeated candidate to try his opponent's right to hold office, upon charges with respect to the election, which challenge the correctness of the whole count and involve the validity of the ballots received and preserved in the ballot boxes. The result of such an action would determine the right to the office and would determine the controversy. It appears to me that the interest of the public is better promoted by such a course. If this relator is right in his contention that the unofficial ballots voted and received at the election in question were illegal and should not have been counted, he should be remitted to such an action against the occupant of the office for which he was a candidate, wherein a final judgment might be rendered determining conclusively the question as between them.
CULLEN, Ch. J., HAIGHT, VANN and CHASE, JJ., concur with EDWARD T. BARTLETT, J.; WERNER, J., concurs with GRAY, J.
Ordered accordingly.