Opinion of
Virgin, J.The conclusion is clear that under the statutes at present existing, the relators, having the interest set forth in the petitions, might legally claim a reasonable opportunity to inspect the official returns of votes from the several cities, towns and plantations in their respective districts. They had a legal right, under reasonable regulations, to see them, after they were opened for examination by the governor and council. Upon the constitutionality in all respects of the statutes, touching this ques*558tion, the court does not undertake in the present proceeding, to pass; but is of the opinion and rules that under the constitution itself, independently of the statutes, the same right of inspection by the relators exists.
The court further holds that the respondent, as secretary of state, is the legal custodian of these official returns, as of other records of the state, responsible for their safe keeping and bound to exhibit them at all proper times to those whose interest is such as to justify an examination by them.
But while it is not doubted that the right of public inspection exists to the extent indicated, and may be asserted and enforced against the respondent if he without cause refuse to exhibit them upon demand therefor properly made, it is one of the requirements of the constitution that the governor and council shall examine all these returns within a comparatively limited period and shall issue summons to such persons as shall appear to be elected. The duty to examine them necessarily includes the right of possession of them for such time as is required to complete the examination. The respondent could not lawfully assert against the governor and council such a right of possession as in their judgment would be inconsistent with the performance of the duty devolved upon them by the constitution. When then, the right of public inspection comes in collision with the necessary possession of the returns by the executive body appointed to examine them, the respondent cannot be in fault if the former yields and the latter prevails.
Upon the question whether at any particular time while the governor and council are engaged in examining the returns, or under the circumstances then existing, it is reasonable for them to be open to the inspection of others or not, the court will not undertake to pass. It would be impracticable for the court, by process directed to the respondent to attempt to control the action of the governor and council in this respect. Nor is it a matter over which the court exercises a superintending authority.
While engaged in examining the returns, the governor and council act in an executive capacity; upon the responsibility of their official station and the sanctity of their official oaths. They are the final depositories of trust and power from the people in regard to it. What limitations upon the rights of others the per*559formance of their own duties necessarily imposes, they must determine. It has long been the established law of the state that, in any matter intrusted to them, the discretion of the court cannot be substituted for theirs; that their action, within the sphere of their executive duty in affairs submitted to their own judgment, cannot be controlled by judicial process. They are in these respects a co-ordinate branch of the government, over which this court does not preside.
If a mandate were to issue, directing the respondent to exhibit the returns to the relators, there must still be a reservation in the decree itself of the right of the governor and council to hold them exclusively whenever the fulfilment of a constitutional obligation on their part imperatively demands it. The mandate, therefore, if issued, would in terms recognize their responsible discretion in the premises.
From the answer in the cause, it appears that, when the relators demanded of the respondent the production of the returns they were in the possession of the governor and council, the time for their examination not having expired. The law accorded to the relators the right to see the returns, whenever an opportunity could be afforded them consistently with the performance of the duty devolved upon the executive department; but it left the governor and council acting under the obligations and responsibilities of their high office, the final judges of what the discharge of their own duty necessarily required; and whether, at any particular time, or under any special circumstances, there was in fact a necessity to detain them from the relators, whose right to see them whenever it did not unreasonably interfere with the performance of the official duty on the part of the governor and council, was clear.
Petition dismissed.
Writ denied.