(dissenting) :
I have considered the statute mindful that every presumption of validity makes for it, desirous to sustain it to end agitation which many think is just,, and anxious to respect an act of the legislative branch of government. The thorough opinion of my brother Milleb, in which I concur, confínes me to brief discussion and indeed makes even that almost superfluous.
The State Constitution provides that all boards or officers for receiving, recording or counting votes at elections shall be made up equally from the largest two political parties. This statute offends, in that it provides a count arid canvass at an election made by a board or officers not composed in accord with this provision of the Constitution. The title of the act provides for a “recount” and a “recanvass.” But these words are accurate only in that there has been a count and a canvass. For this “recount' and recanvass,” if made, has no relation to any former count or canvass by way of verification, check or correction thereof. It is made db initio and is in itself complete, from taking up the ballots to the issue of a certificate of election based solely on its result. And this count and canvass is declared to “supersede” “in all respects” the returns of the election officers. Whatever was done by the election officials is as if it never, had been done. It is as if á statute passed prior to *164this particular election- commanded that the Supreme Court, exclusively should make the sole original count at that election. In fine, the statute substitutes nunc.pro tunó the Supreme Court as a counting and canvassing board for a particular election in place of the constitutional election officers. ■ How, then, can such count and canvass.be a “recount ” and a “recanvass?”
It seems clear that the count and canvass of this statute is within the .constitutional words “at .elections,” for' the reason that the words do not mean necessarily a -count “ eo instanti” but, refer to the count related to an election and made to determine its result. The result of this election is reached from this count and canvass alone, whenever made. Hone is more capable of meeting the question of .this offending against the Constitution than the learned Counsel for the -respondent, but he does not, either by his argument that it .provides for a “ recount after .an election” for the reasons I have stated, or by his showing that votes are recounted and not fry bi-partisan agents in quo warranto and in mandamus, which showing is not in point for the reason that such recounts are not at elections but are incidental to recognized legal proceedings in courts of law to determine the title to office wherein evidence is .or may be taken and of -which the result is judicial judgment or decree.
The fact that the statute casts a duty on a court does not exclude the statute ,from the purview of this Constitutional provision. If a ministerial.act is devolved upon an agency which already has judicial powers, that act does not thereby become.judicial. For the nature of the duty is determined by what is to be done and not by the doer. . As wc think that powers cast upon a judge should be judicial and powers devolved upon a Legislature should be legislative, we are naturally inclined to regard and to strive to define any new power as logically lodged — if it be in a judge, judicial; if in a Legislature, legislative. But devolution is not definition. And there should be no confusion of thought, due to an abnormal assignment, of powers, that if a court is designated to act it is, therefore, a court which acts. The policy of this statute is to call in another to do exactly what has been'done. . What has been done, was done by laymen—- constitutional officers-^- and. now the court is but -to count and to. canvass as did these‘.officials, and in this doing the court is neither authorized nor required to employ broader powers *165or its general judicial powers. As a complete canvass and count requires a reckoning of the ballots disputed as well as undisputed, and hence a passing upon the former kind, the court is clothed by this statute with the power to canvass and to rule upon the disputed ballots; but so too were the election officials. Even the Appellate Division on review is required to canvass such ballots in a “ summary way.” This to my mind is not the conferring of judicial power as contradistinguished from the similar power, vested in the election officials. The court may be better qualified, but its means of determination are the same. The opinion of .Miller, J., conclusively shows that the duties which ,were done by the election officers were ministerial or in some minor respects but quasi-judicial.
I think that the statute does-not provide a judicial hearing and determination of an election contest. It is true that it provides for a determination of an election which was contested, but the "determination is by the same method as is prescribed by the Election Law, namely; a count and a canvass. It is the means, not the method, that is changed. What feature in the statute justifies the conclusion that it prescribes judicial action ? Mot the devolution of this duty upon a court, for the. reasons already given. Mot the character of the main duty, a count and canvass, for that is ministerial. Mot the preliminary duty of determination that the ballots are in existence, for that is fulfilled by their mere physical preservation, and the .ascertainment whether a state of facts exists which requires the doing of an act prescribed is not judicial (State v. Hathaway, 115 Mo. 36, 49), and if it be otherwise in this case, it. is incidental and preliminary. Mot any prescribed exercise of judicial functions for the court is limited to ministerial acts or such as are equally vested in the board of canvassers; Mot the taking, of evidence, because the court cannot. Mot the right to consider the application on the merits,' for the court has. no alternative; it must proceed to the. count. Mot the provision for notice, for there is none of the application while the notice of the count is but natural to the publicity thereof, and would doubtless be provided in the Election Law but that its cotint is at a stated time. Mot a judicial mandate, judgment or decree, for the proceeding ends in an “ order” .which is nothing- more than a return like unto that of the election O officials, and which exactly like the existing return in the districts *166wherein no count is made,- is of the basis for a tabulated statement to be prepared by “ the' board or officer authorized to issue certificates of election.” There is no judicial power of review, because there is nothing to> review ; the Original returns are entirely superseded. There are no parties before the court asking for judicial action which shall, 'determine the- relative ■ rights of the litigants upon the facts and in accordance with law expressed in a judgment or decree! There is no ministerial act of board or officers up before the court for review. The proceeding does not rest upon any complaint- for fraud, violation of law or statute or other wrongdoing. Of course in a sense there was and there is a “ dispute ” which is not -abatód so long as 'all of the candidates do riot acquiesce in the count and canvass made. And dissatisfaction with the result thereof has led to this statute. And so the court. is now called upon for reasons of convenience, and, I think, of public. confidence, as counter and canvasser only, and not to .reach a result by the exercise either of broader powers conferred by the statute or of its general judicial powers. , The certificate of election is no more in controversy in this proceeding than it was in • the original'count and canvass, for -in either case it but follows the ministerial act of count and canvass, . It is not now to be awarded by the court in its judicial capacity, but it issues on the tabulation of'the returns or ordérs by the regular election officials. “A. judicial act *' * * is a duty which has been confided to judicial officers to be exercised in a judicial, way.” (Supervisors of Onondaga v. Briggs, 2 Den. 33.)
After all, the predominant consideration is that whatever the nature of' the act of count and canvass, whether judicial or quasi-judicial oi* ministerial, the Constitution commands that the' count and canvass at ah élection shall be made- by bi-partisan agents. The policy or the purpose of this legislation is not our concern any more than the policy of any candidate who^ seeks • or who opposes this proceeding. Legal objection calls for legal adjudication, and with that made we reach our limitation.