(concurring):
The sole question presented, is as to the. validity of chapter 538 of the Laws of 1907. The act' is entitled “ An act to provide for a judicial recount and recanVáss of the votes cast for the office of mayor at the election of the seventh of November, ninéteen hundred and five, in all cities of the first class in which the ballots have been preserved.” So far as it-is necessary to state its provisions for the intelligent disposition of the questions presented, it creates a proceeding to be commenced by the presentation of a 'petition, by any candidate for the office of mayor voted for at the election referred to, in any city of the first class in which the ballots have been preserved, to the Supreme Court in any judicial district within which' an election district to be affected is situate, upon receipt of which, and after the giving of sutih notice as shall be prescribed, the court “must proceed to a summary canvass”. of the vote cast in such election district. An order shall be made and served upon each candidate voted for at shclr election, directing the production of the requisite ballots in' the county court house and tlieir canvassing by an attorney appointed by ■ the court for that purpose, designated a “ commissioner,” in the presence of all candidates affected, or the counsel of such as have appeared in the proceeding. The commissioner is required to take from the ballot box —one by *153one — all of the ballots it contains, submitting each to the inspection of counsel for the candidates affected. While the act seems to imply that the commissioner shall state his opinion as to whether each ballot should or should not be counted for the candidate for whom it was cast, it provides that if counsel differs with him such ballot shall be “placed on one side” as a disputed ballot. After such' consideration of all ballots cast in such election district, the commissioner is required to prepare a written statement of the number of undisputed ballots received by each candidate, which statement, with all of the disputed ballots, are directed to be sub-, mitted to the court, who is required to rule-upon each ballot so disputed. If exception is taken to any ruling, the court is required to indorse its ruling and such exception upon the back of the ballot, and upon the completion of such rulings make, in triplicate, a final order for each election district specified in the petition containing a complete return of the vote under review, which supersedes the ■returns of the election officers. Within ten days after the making of such final order a summary appeal therefrom may be taken to the Appellate Division; upon the hearing of the appeal the order and the ballots to which exceptions were taken in the court below are only to bp considered. Upon the determination of the questions presented by such exceptions, the Appellate Division is required to make, in triplicate, a final order for each election district containing a complete return of the vote under review, which supersedes the order of the court below and the return filed by the election officers. Within ten days after the filing of the order of the court below, or of the Appellate Division in case an appeal be taken, the board or officer authorized to issue certificates of election is required to prepare from said orders and the returns not superseded, a tabulated statement of the total number of votes cast for each candidate at such election; certify and file the samé in their office, and within three days issue and deliver a certificate of election to the candidate thus shown to have received the greatest number of - votes, which certificate, if it changed the previously declared result of the election, supersedes the certificate theretofore issued.
It is further provided: “Nothing in this act contained shall impair or affect any right under the Constitution or laws of this State to question, by proceeding in the courts, the right or title of *154the" candidate who shall, as. a result of. said recount, he declared elected, but there shall be no judicial review of any ballots which shall have been canvassed in the proceedings herein authorized.” The candidate availing himself of the provisions of the statute is required, when he makes his application, to tile with .the clerk of the court an undertaking with sureties approved by the court, conditioned to pay.the costs-of the proceeding if they shall be awarded against him. If the result of such proceeding is to change the previously declared result óf the election, the costs of -such proceeding áre made a charge upon the city to be paid in the "samé manner as . other city charges. If the previously declared result remains unchanged, the. costs are to be paid by the petitioner. The proceedings authorized by the statute are given precedence over all other business of the court. The relators contend, tliat this statute violates sections 1, 2,and 10" of article 6, section 6 of article 2, section 1 of article 1, section 2 of article 1, section 16 of article 3 and section 10 of article 8 of the State Constitution, and section-1 of the fourteenth amendment to the Constitution of the United States. "
Upon the threshold of the. consideration of the-questions presented we may eliminate that provision of the statute which abridges the jurisdiction of the-Supreme Court upon the trial of an action to determine -the title to the office of mayor, by limiting its consideration to those ballots not considered or acted, upon in. proceedings instituted under the provisions of the statute under consideration. This clause -'does not violate the' provisions of the Constitution, but even if it does it in rió manner affects the validity of the other provisions of the statute under -the well-settled rule that when nncon.stitutional statutory provisions can be stricken out and that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, that portion of the statute which is valid must be sustained. (Matter of Village of Middletown, 82 N. Y. 196; Matter of Metropolitan Gas-Light Co., 85 id. 526; Skaneateles Water Works Co. v. Village of Skaneateles, 161 id. 154.)
■ We riiay likewise eliminate from oui- consideration that provision of the statute which assumes to take from the court its judicial diseretion by providing that upon the presentation of the petition'the *155court “ must proceed to a summary canvass of the vote.” While a literal construction of this wording would make it obligatory upon the court, upon the presentation of a petition simply reciting that the petitioner was a candidate for the office of mayor and voted for at the election held on November 7, 1905, in a. city of the first class in which the ballots had been preserved, to proceed summarily, without the right to exercise its undoubted discretion as to whether the petition presented facts justifying such action, a proper construction of this clause will divest it of this obnoxious feature. In People ex rel. Morse v. Nussbaum (55 App. Div. 245), in which the construction of the words, “ And it shall be the duty of the justice of the Supreme Court, to whom such application for the order is made, to grant such application,” contained in section 4 of chapter 690 of the Laws of 1899 (which amended chapter 383 of the Laws of 1897, in which the clause quoted read, “ if it appeal’s to the satisfaction of the justice of the Supreme Court, to whom the application for the order is made, that such an order is necessary, then such order shall be granted”), was a question, Mr. Justice Kellogg says: “Although the Legislature has taken such pains to make here its intent apparent, I cannot believe it really intended to make this feature of the law ineffectual by the coercion of judicial discretion, or making the justice to whom the application is presented simply a scrivener to subscribe his name. If the function is a judicial one the Legislature could not use it or decide for the court. If it does not call for the exercise of a judicial function the Legislature could not impose the duty, nor could-the justice discharge it.” He then cites Jenkins v. Putnam, (106 N. Y. 272), in which the Court of Appeals construed the word “ must ” in section 873 of the Code of Civil Procedure, holding that “‘"While it is said in section 873 that the judge ‘ must ’ grant the order * * * yet we do not think that the language is absolutely mandatory, and that it was intended to deprive the judge of all discretion,’ ” and continuing says : “ This reasoning and the need of relieving this .part of the law from the charge of being repugnant to the Constitution, requires that the apparently mandatory language of this law, ‘ And it shall be the duty of the justice * * * to grant such application,’ should be construed to mean that it is the duty of the justice to grant the order in case the application or petition, read *156as a whole, discloses that the examination of the witnesses is necessary for the purposes named in the act.” (See, also, Matter of Davies, 168 N. Y. 89, 102, 103, where this reasoning .is sustained.)'
It is apparent that .the purpose and intent of the Legislature in the act under consideration was to bring before the court for review the identical ballots which were cast at the election in the identical condition in which'they were when cast, and that the action of the court was-to be upon the identical conditions as to. the ballots arid their count -that existed at the* close of the polls on election,, night. The requirements of the- statute are not met by a petition simply showing that the petitioner was a candidate for tlié office of mayor, at such election, in a city of the first class, in which the ballots have been preserved, but,he is bound to further show that the ballots cast, at .that' election are intact and in the same condition as when cast: that they have not been altered or in any manner tampered with since they were deposited by the-¿lectors in the ballot boxes, .and until primarily satisfied of these facts no mandatory obligation rests upon the court to proceed to the consideration of the ballots or discharge of the duties required by the statute. It is thus required to exercise a judicial function,, namely, tliat of determining whether the petition conforms to the .requirements of the statute, and the judicial discretion is in no manner and to no extent interfered with. When there is room for .two constructions. of á statute the court must adopt that which is in harmony with the, Constitution-. (Matter of New York & Long Island Bridge Co., 148 N. Y. 540.)
A statement - of a few of the propositions apparent from an inspection of the record will dispose of many of the questions presented by the learned counsel for the relators.
1. There can. be no legal right to the: possession of an office to which the occupant has not been -legally elected. The statute does not assume to divest the occupant of the possession of the office if the proceeding authorized by its provisions establishes such election. The only right involved in this proceeding is that of the possession of the office of mayor of -the city of New York, which is nota personal right, and consequently not within the provisions of section 1 of article 1 of the Constitution.
2. The relator, George B. McClellan, is not deprived of his con*157stitutional right of haying his title to office determined in a quo warranto action by jury trial.
3. He cannot be deprived, by any proceeding under the statute, of property as the subject-matter of such proceeding. The right to possession of the office of mayor is not property or a property right within the meaning of the Constitution. It is .well settled that an office is not the property of the officeholder but is a public trust or agency, not held by contract or grant, and to or in which the officer has no vested right. (Conner v. Mayor, etc., of New York, 5 N. Y. 285; Smith v. Mayor, etc., of New York, 37 id. 518; McVeany v. Mayor, 80 id. 185; Nichols v. MacLean, 101 id. 526; Koch v. Mayor, 152 id. 72.) The official rights of the holder of an office are not within the provisions of section 6 of article 1 of the Constitution prohibiting the taking of property without due process of law.
4. The contention that the statute takes from voters the right of having their votes duly cast, canvassed and counted, given due force and effect, I believe to be without merit. The question of whether the votes cast were duly canvassed and counted is in the end a question of law, to be judicially determined in cases provided for by this statute, by methods which give, and secure absolute effect to every ballot cast, which was duly canvassed and counted.
5. The contention that the statute creates or imposes a tax without stating its amount, and refers to other laws to fix such tax, in violation of section 24 of article 3 of the Constitution, is. without force, in view of the decision of the Court of Appeals in Jones v. Chamberlain (109 N. Y. 100), that the provisions of the section referred to apply only to a general tax upon all of the property of the State, and do not apply to á local tax upon a particular section.
These views, I tliinlc, dispose of all questions presented requiring consideration, with the exception of those dependent upon the contentions, first, that the act is a private and local act; second, that it is unconstitutional because of its provisions for a counting of the votes by a commissioner instead of by a bi-partisan board, and, third, that it imposes upon the court non-judicial functions or duties. I am unable to concur with the contention that the statute under consideration is a private or local bill within the meaning of section 18 of article 3 of the Constitution. It applies to all cities of *158the first class in which an election was held on November 7, 1905, and in which the ballots have been preserved. While our personal knowledge, or facts presented upon the hearing of this application, -may demonstrate that it is applicable to and can take effect only upon the respective rights of Mr. Hearst and Mr: McClellan, derived by them from the election held in the city-of New York for mayor on November. 7, 1905, I regard the rule well settled by the Court of Appeals, after consideration óf all the cases in which this question was involved, and restated in several important cases,that a statute embracing and equally applicable to all things of a certain class, or municipal subdivisions in the same class, is a general and not a local act, although by' reason of some limitation therein contained, based on. population or other condition (in the case under consideration upon the preservation of the .ballots), only a particular locality dr city can, -under actual situation or circumstances,' receive its .benefits or be subject .to its provisions, and that in the consideration bf this question courts are limited to'' the provisions of the statute itself, and a consideration' of the conditions and circumstances leading ,'to its enactment and the-evils it was designed to remedy. (Ferguson v. Ross, 126 N. Y. 459; Waterloo Woolen Manufacturing Co. v. Shanahan, 128 id. 345; Matter of Dobson, 146 id. 357; Matter of Henneberger, 155 id. 420.) There is no limitation or restriction contained .in this act that takes- it out of the rule of construction established by these cases' within the operation of which it is a general and not a private or local act. In addition, I think that within the rule declared in Ferguson v. Ross (supra) the public interests affected by this statute are sufficient to make it a general act. In that case it was held that a statute making it a punishable offense to deposit certain refuse in the North and East rivers or in the bay of New York was, by reason of the interest of all the people of the State in . the protection of the harbor óf New York, the impairment of which would affect the prosperity •of the State, a general and not a local one. The principles declared in that case apply with as great force in the case at- bar.'
This conclusion, I believe disposes of the questions resting upon the assumption that, the act is a private of local act, namely: That the act embraces more than one subject and that the subjects contained therein are not set forth in the title; that the act provides *159for the opening and Conducting of the election of November 7, 1905, and that it grants exclusive privileges to unsuccessful candidates for the office of mayor. Nor am I in accord with the contention that the provisions of the act providing for the appointment' of commissioners to count and return the number of unchallenged ballots cast in the election, together with such ballots as are disputed, to the court for consideration and judicial conclusion as to their legality, violates the constitutional requirement (Art. 2, § 6) that “ all laws creating, regulating or affecting boards or officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the general election next .preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes,” for the reason that this section applies only to officers or boards serving at an election and its-object and purpose is to afford an equal opportunity to party representatives in acquiring information relating to the conduct of, and in actions taken at, an election in the interest of their respective party candidates. The boards and officers connected with the election in question were bi-partisari, appointed in conformity with the requirements of law, and all the rights, benefits and advantages secured or intended to be secúred to candidates or political parties by such provision were had and enjoyed at such election. Such benefits and advantages are to be no more interfered with or the results accomplished thereby, changed in a proceeding under this statute than they would or might be, in a quo warranto action or a proceeding by mandamus under the provisions of the Election Law,* for a determination of the legality of ballots cast and counted, their recanvass and the recording of the results reached therein by the court, and there is no more reason why the constitutional provision quoted should apply to a proceeding under this statute than to the action and proceeding referred to, which have for their purpose the same result, namely, the judicial determination of the legality of the ballots cast and counted and which candidate received the greatest number of the legal ballots cast, with the proper recprd of the conclusions reached. The commissioner is no more nor less than a *160referee through, whose action the facts .required to enable the court to pass intelligently upon the questions presented are ascertained. He .has no authority, to pass upon the question of whether any ballot cast is valid or void or whether it was properly or improperly counted: His powers are limited to counting- and. reporting the number óf ballots cast that, áre not disputed,- and returning those which are, which duty he performs after notice to- and in the presence of the candidates and their counsel.- It is the court -only that has the power to adjudicate- and determine the legality of the ballots cast and of their canvass at the election; the exercise of this power alone can' change results to the detriment of candidates,-and the authority so conferred Upon and limited to the court is substantially the same.- and its exercise produces- the same results in the first instance that flow from the exercise of the same authority vested in courts by the Legislature in mandamus proceedings under the Election Law and in the court and jury in quo warranto actions. It must be kept in mind that every presumption, must be indulged in favor,pf the validity of this act; that where a reasonable doubt exists as to the validity or invalidity of a statitte the question must be resolved in favor of its Constitutionality. It- is a well “settled rule that only when required by the most cogent reasons, nor, indeed, unless compelled by unanswerable - grounds, will a court declare a statute to be Unconstitutional.” (People v. Budd, 117 N. Y. 1, 13, 14.) This leaves for consideration only the question of whether the act imposes upon the court nonjudicial or ministerial functions. A judicial act has been held to be: “An-act done- by. a member of the judicial department of government in construing the law or applying it to a particular state of facts presented for the determination of the rights "of the parties thereunder ;■ an act done in furtherance of justice, or a judicial proceeding by a person having the right to exercise judicial authority; an act .that determines what tlm law is, and wliat the rights of the parties are, -with reference to transactions that have been had; an act that undertakes to determine questions of right or' obligation; an act done or performed in. the exercise of judicial power'; the performance of a duty which has been confided to judicial officers to be exercised in a judicial way. While the term ordinarily imports the exercise of: judicial power, if may also involve *161within its meaning the exercise of judicial discretion or judgment.” (23 Cyc. 1614.) A ministerial act — in law — is defined in the Century Dictionary and Cyclopædia (p. 3777) as an “act, office, or power that is to he performed or exercised uniformly on a given state of facts, in a prescribed manner, in obedience to law or the mandate of legal authority, without dependence on the exercise of judgment as to the propriety of so doing.”
■ The act in question was clearly designed as a judicial review of the declared result of an election and a judicial determination of the legality of such of the ballots cast as were' disputed or challenged, and of their proper count by the election officers, thus determining who was entitled prima facie to the possession of the office, reserving to the candidate ascertained to have received the lesser number of votes his right to trial by jury in an action of quo warranto of the title to the office in the same manner and to the same extent that he was entitled to prior to the' enactment of the statute.. In this proceeding the functions devolved upon the court are the determination of whether the petition presented conforms to the requirements of the statute and states facts sufficient to justify the procedure authorized; the approval of the form and sufficiency of the bond; the appointment of one or more commissioners to ascertain and report the facts upon the questions to be presented and determined at a hearing in the presence of such candidates and their counsel; the judicial determination of the legality of each ballot cast which is disputed or challenged and in issue, by ruling upon each separately; the making of orders embodying the results and conclusions reached, and those necessary to carry the determination, into effect. Hone of these duties are clerical; all require the exercise of - judgment, and in their performance both the Supreme Court and the Appellate Division exercise judicial functions and act judicially, for they must decide the questions of law arising upon the facts' presented, and ultimately determine — and such determination has the effect of an adjudication — the rights of the candidates to the posséssion of the office. This conclusion is clearly justified, I think, by Matter of Davies (supra). Neither of the decisions, Case of Supervisors of Election (114 Mass. 247) or Matter of Attorney-General (21 Misc. Rep. 101), *162upon which the relators rely as authorities for their contention in this, respect, is in point nor controls the disposition of the question under' consideration. In the Massachusetts case, the decision of the court is placed upon the controlling specific ground that by the provisions of the statute before the court, the supervisors were strictly exécutive officers who made no report or return to the court or . to any judge-thereof; whosedutiesrelatedto.no judicial suit or proceeding, but solely to the exercise by the citizens .of political rights and privileges* distinguishing such duties from those of several classes of appointees named in the, opinión, many of whose functions might be imposed by law upon strictly executive officers, but were held judicial because, as the court says* they were " by express requirement or necessary implication obliged to return a report of their doings to the court for its judicial action,” precisely • the condition and requirement existing in the statute under consideration in the case at bar. In Matter of Attorney-General the decision of the court is placed upon "the fact that the duties imposed upon .the court by the statute being considered, were merely- ancillary or auxiliary to the Attorney-General in the performance of his duties, leading to nó judgment or determination .of the court, and, therefore, nqt judicial. In the statute under consideration the commissioner is required to report to the. court,' and its • determination is an adjudication "upon the subject-matter.
• Words might have been selected more clearly expressing the intent and purposes of this statute* relieving it from the- strained and technical construction sought to be given it; but in view of the "well-established rule permitting courts; in . the Construction óf a statute to consider the facts leading to its enactment and the evils it was designed to remedy, so plainly apparent'from the history of the municipal election in the city of New York in 1905; the long delay incident to the trial of an action of quo warranto; the insistent demand of the people' of the State that sonic legal and summary method of procedure should be employed to accomplish that result,. so "forcibly stated by Governor Hughes in the, following language,:. “ It is well known to all. who are conversant with sentiment in the city of New York, that there is' widespread doubt as to the accuracy of the official canvass. The failure to resolve- that doubt-and to determine in a prompt and decisive manner, satisfactory to all fail *163minded citizens, the result of the election, has become a grave public scandal. * * * In the public interest and for the sake of the credit of our institutions this matter must be settled. * * * In the belief that public policy requires the settlement of this controversy as speedily as its nature will permit, and that it would be most unfortunate that legislation to this end should fail, I approve this bill.” It follows as an inevitable conclusion that in the enactment of this statute the legislative intent to authorize'a summary judicial review and adjudication of the legal rights of the candidates to the possession of the office of mayor is apparent, and that the duties vested in the courts to make this intent effectual and thus accomplish this result are judicial and not ministerial, the act must be held constitutional and the application for a writ of absolute prohibition denied and the alternative writ.. vacated and set aside, with costs to the defendants.
See Laws of 1896, chap. 909, § 114.— [Rep.