(dissenting):
The following is a brief summary of -the material provisions of the act before us, viz. : Upon petition and .upon such notice as the *167court shall prescribe the Supreme Court must proceed to a summary canvass of the vote in any election district specified and shall make an order that the requisite ballots shall be produced in the court house and canvassed in the presence of all candidates affected, or their counsel, by a commissioner appointed by the court, who shall canvass the ballots one by one and shall make a written statement of the count upon all the undisputed ballots which, together with the disputed ballots, shall be submitted to the court; the court shall then proceed to canvass the disputed ballots, ruling upon each in turn, and if exception is taken to any ruling it must indorse ruling and exception upon the back of the ballot; at the "conclusion of said canvass the court shall make in triplicate a final order for each district containing a complete return of the vote under review; one of said orders shall be filed in each office where the returns of the election officers have been filed, and shall in all respects supersede said returns; a summary appeal from said order may be taken to the Appellate Division within ten days; upon such appeal only the ballots as to which exception was taken and the order of the court below shall be produced, and the Appellate Division shall proceed to can-vass such ballots in a summary way and make in triplicate a final order for each district containing a complete return of the vote wnder review, one of which shall be filed in each office" where the returns of the election officers have been filed, and shall, together with the order of the court below, in all respects supersede said returns ; within ten days after the filing of said orders containing said returns, the board or officer authorized to issue certificates of election must prepare from said orders and from the returns not superseded a tabulated statement showing the total number of votes cast for each candidate, certify and file the same in the office of said board or officer and within three days issue and .deliver a certificate of election to the candidate shown to have received the greatest number •of votes, which certificate shall 'in all respects, if it shall change the previously declared result of the election, supersede the certificate theretofore issued; upon the receipt of such new certificate the candidate certified therein to have been elected shall forthwith take office, be invested with the powers and perform the duties appertaining to such office. I quote the following: “ Any justice of the Supreme Court may make such summary order or entertain such *168proceedings as may be necessary to carry said ■ recount into effect and secure to the candidate siiown' by said recount to have been, elected, full possession of the office of mayor and. the exclusive right to exercise the functions of said office. § 3. 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 the candidate who shall,, as a result of said recount, be declared elected, but there shall be no judicial review of any ballots which shall have been canvassed in the proceedings herein authorized.” The act also provides that the proceedings authorized by it shall have precedence oyer all other business of the court. «,
As we view it, the fundamental question to be determined in this case is whether the act invests'the court with judicial functions. •It may be that.the court acts judicially in making the ex parte order for the production of the ballots, for although the language of the.statute is mandatory, it maybe inferred that before making the order the court should be judicially satisfied that the petitioner was a candidate for the office of mayor voted for at the election specified and that the ballots have been preserved (see Matter of Davies, 168 N. Y. 89), but that order is preliminary and incidental to the real purpose to be accomplished, i. e.,. the canvass of the vote, and the character of the latter act must determine the question before us. The court is to count, to canvass, the' ballots, to rule upon' eách in turn, and then to make an order containing- a complete return; the fact that this is to be done in part by a commissioner, then by the court, and finally, in respect of ballots as to which exception was taken, by the Appellate Division, does not change the ease, because at no stage can anything be done except to canvass ballots and make a statement thereof. Testimony cannot be received, for the Appellate Division can have before it only ■the order of the court below, and the ballots as to which exception was taken. This is precisely what inspectors of election do. They rule upon each ballot in turn, determine whether it shall be counted, and if so, hów; they cannot look beyond the face of' the ballot, no more can the court in making• the canvass provided .by this act.; they make a return of their canvass to a canvassing board, precisely what this act requires the court to do. Moreover, the court does *169not make this canvass for the purpose of reviewing the one already made, and of compelling the correction of errors therein; it cannot even have before it the statement of such canvass, and, even if permitted to' know what that showed,. could take no cognizance thereof, because its duties are limited to making what is practically an original canvass, which is to supersede in all respects the one theretofore made; the original returns are treated as though they had never existed, and new returns are to be made by the court to a canvassing board, which is to canvass them and thereupon to issue a new certificate of election. The act does confer upon a justice of the Supreme Court the judicial power to give the candidate receiving the new certificate of election possession of the office; this is but the usual power of compelling in "a summary way the delivery of books and papers to the one having the certificate of election. (See Code Civ. Proc. § 2471a.) It is appropriate to oust an intruder, but not to try a disputed title to an office. (See Matter of Bradley, 141 N. Y. 527.) By this act the exercise of this power supplements the delivery of the certificate of election issued upon the canvass of the returns made by the court, precisely as under the general law it supplements the delivery of such certificate issued upon the canvass of returns made by inspectors of election, and that provision emphasizes the purpose and intent of the act to obliterate and to supersede by the proceeding authorized by it all that the regularly constituted returning boards have done, and to invest the courts with the powers and duties of said boards, but not as an incident to any legal action or proceeding; and that there might be no doubt on this head, the act expressly preserved the right to question, iyproceeding in the courts, the right or title of the candidate so declared elected. The provision that there shall be no judicial review of the ballots so canvassed, coupled as it is with said last-mentioned provision, must mean simply that the correctness of said canvass cannot be disputed. The canvass made by the inspectors of election could be made conclusive if the Legislature saw fit. It is, therefore, indisputable that in substance this act requires the Supreme Court to do precisely what inspectors of election do, and no more.
Inspectors of election, returning boards, judges of election, as they are termed in some jurisdictions, have never, sq far as V)C have. *170been able to ascertain, been regarded as judicial officers in the sense in which we now use the term. Their duties may be ministerial or quasi-judicial, depending upon' the jaw defining them, precisely the same as other executive or administrative officers may be charged with both ministerial and judicial duties. It was decided in England early in the eighteenth century that returning officers may be liable in a civil action for damages (Ashby v. White, 2 Ld. Raym. 938); and while Lord Campbell applied the maxim that no man shall be a judge in liis own cause to a returning officer who had returned himself as elected (see Queen v. Owens, 28 L. J. [N. S.] Q. B. 316), the doctrine that they are not entitled to the. immunity accorded judicial officers seems not to have been departed from. (See Pryce v. Belcher, 3 C. B. 58; S. C., 4 id. 866; Pickering v. James, 42 L. J. [N. S.] C. P, 217.) The proposition that they are not judicial officers, and that for the most part they act ministerially, w'as early settled and has been .steadily adhered- to in this State. (People v. Van Slyck, 4 Cow. 297; People v. Pease, 27 N. Y. 45; Goetcheus v. Matthewson, 61 id. 420; People ex rel. Stapleton v. Bell, 119 id. 175; People ex rel. Sherwood v. Board of Canvassers, 129 id. 360; Matter of Hamilton, 80 Hun, 511; People ex rel. Van Sickle v. Austin, 20 App. Div. 1; 46 N. Y. Supp. 526.) An examination of- our Election Law (Laws of 1896, chap. 909, §§ 105-114, as amd.) discloses that the. duties of the inspectors are so careftilly. defined as to.leave nothing to their judgment or discretion respecting .the duty of Canvassing the votes, except as every ministerial officer has to decide what the law commands liim to do. The statute prescribes in great detail júst how the 'elector may mark his ballot, .and just how the inspectors must make tlieii canvass, and iii makingit they act ministerially. (See Matter of Atkinson, 28 Misc. Rep. 694; affd., 45 App. Div. 628; People ex rel. Brink v. Way, 179 N. Y. 174; Matter of Hearst v. Woelper, 183 id. 274, and cases cited supra.) It is a universal rule that mandamus will not lie to compel a judicial officer to act in a particular.manner, and yet there cán be no doubt that -independently of statute mandamus-will- lie to compel boards of inspectors,, at least, before they have become fundus officio, to can-vass ballots in thp manner prescribed by law. But beyond this the Legislature has recognized that mandamus is the proper remed}', and has expressly provided by section 114 of the Election Law for the *171issuance of that writ. (See, too, on this subject, People ex rel. Hasbrouck v. Supervisors, 135 N. Y. 522; People ex rel. Feeny v. Bd. of Canvassers, 156 id. 36.) But it does not follow that the court can do what it may require by mandamus of an administrative officer. Without tracing the origin of that writ it may be said that it has always been regarded as an important function of the courts to compel by mandamus administrative officers to obey the law; but because the court may examine ballots as an incident to the discharge of a judicial function, i. e., the granting of a writ of mandamus commanding election officers how they shall canvass them, it does not follow that it is in -any sense a judicial function to canvass ballots for the purpose of performing a ministerial act, i. e., the making of returns to a canvassing board. (See People ex rel. Stapleton v. Bell, supra.)
But even assuming that the returning board. in canvassing the ballots and making the return acts quasi-judicially, it does not follow that they discharge any judicial function. Judicial power is defined by Bouvier (2 Bouv. Law Dict. [Rawle’s Rev.] 42) as “ the authority exercised by that department of government which is charged with the declaration of what the law is, and its construction so far as it is written law. The power to construe and expound the law as distinguished from the legislative and executive functions/’ “ It is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” (Miller U. S. Const. 314.) Mr. Justice Nelson, in charging a grand jury respecting the. “Fugitive Slave Law,” distinguished between the judicial power “ mentioned in the Constitution and vested in the courts ”. and quasi-judicial power “ invested, from time to time, by legislative authority in individuals, separately or collectively, for a particular purpose and limited time.” (See 1 Blatchf. 644.) “ Judicial power” is “The power of interpreting law—• of declaring what the law is or has been.” (Anderson L. Dict. 579.) It was held in Massachusetts that a statute directing the justices of the Supreme Court to appoint supervisors of election was unconstitutional, for the reason that, the duties of such supervisors related to no judicial suit dr proceeding,.but solely to the exercise by the citizens of political rights and privileges. (Case of *172■ Supervisors of Election, 114 Mass. 247, 251.) And while the United States. Supreme Court held that a similar act .authorizing the Circuit Courts to appoint supervisors of elections at which repre-. sentativ.es to Congress were elected ..was valid, the decision was placed upon an express provision of. the Federal .Constitution* empowering Congress to vest the appointment of inferior officers in' "the President alone, in the courts of law, or in the heads of departments; and the discussion-of the court in that case in no way militates against the propositión that the ^actual conduct of elections is not within the judicial power as defined in the Constitution. (See Ex parte Siebold, 100. U. S. 371.) , Chjef Judge Culleh,- in People ex rel. Behan v. Mc Williams (185 N. Y. 92, 95)y explained the different senses in which the terms “ judicial ” and “ quasi-judicial ” are Used in judicial literature, and pointed out that although an administrative or executive officer or board might have to exercise judgment, that did not make, their action judicial in character. In "determining whether-this act imposes judicial functions, .we must .not be led into any confusion of thought by the fact that' the. court ■ is required to discharge such functions, because "the character of .the act in. respect of whether if is judicial or not must be determined by what is required to be done, and not by the.agency selected to per-. form it. Of course,- we start with the presumption that the duties imposed upon the court are judicial, and examine every line of .the act in the light of th^it. presumption to ascertain what -those'duties are; but, when we perceive what the act requires the court to do, we must ignore the fact that the court is to.do it, in .determining its character. In a judicial proceeding or action instituted by some appropriate writ or - process, the court tries "issues of fact or law . framed in some appropriate manner, and pronounces a judgment, decree or- order which settles the controversy, but under this act it -is' required simply to canvass ballots as the law prescribes for.the purpose of performing a ministerial act, i. e., the" making of a return to a canvassing board; and the mere canvassing of ballots except as an incident to some judicial proceeding is in no sense a judicial function. : When all that tins act requires, has been performed, the question of the title to the office, which has always been recognized as a proper subject for judicial cognizance, will remain pending and *173undetermined. In early times the proceeding to try title to office was instituted by the writ of quo warranto, later by information in the nature of quo warranto, now superseded in this State by the action of quo warranto; and in England and in many jurisdictions in this country election contests may be tried in a summary proceeding instituted by petition. But in all such cases the court determines the judicial question of the^ title to the office, not the administrative question of who shall receive the certificate. of election / and in the trial of that question the courts will go behind the certificate of election, the returns of the returning board, the canvass by the canvassing board, and even the ballots themselves, and take evidence to determine who in fact received the greatest number of lawful votes.' (People v. Pease, supra; People ex rel. Judson v. Thacher, 55 N. Y. 525; People ex rel. Dailey v. Livingston, 79 id. 279.) I have made diligent search in the statutes of many States of the "Union, and have been able to discover but one statute which required a judicial officer to perform the duties of a returning board (see General Statutes N. J. p. 1327, § 195); and under that statute the courts 'of New Jersey held that the justice of the Supreme Court acted ministerially. (State ex rel. Ruh v. Frambach, 47 N. J. L. 85; Kearns v. Edwards, 17 N. J. L. J. 51; 28 Atl. Rep. 723.) It should be noted that that statute imposed the duty not on the court but on the justice thereof,- and that the Constitution of New Jersey contains no such provision as the one to be discussed infra.
We come now-to the express provision of our Constitution which we think is violated by this act, but before considering it, we wish to say that we do not desire to be understood as minimizing, by not discussing, the importance of the fundamental proposition that under our form of government it is not competent for the Legislature to invest the courts with non-judicial functions except as an incident to the discharge of such as are judicial. - It is now finally settled in the jurisprudence of this State that the express enumeration in the Constitution of the powers of the three great branches of government necessarily excludes each from exercising the functions of the other, and there must be no abatement now-of the efforts of the courts'to preserve our free institutions by 'preventing, whenever properly called upon to do so, the éncroachment of one branch of government upon the functions of a co-ordinate branch, *174or the burdening of one with the duties of another. (Seé on this head the discussion of Judge Yann. and the cases cited by him.in Matter of Davies, 168 N. Y. 89, 102.) This question is emphasized in this easp by the fact that the court is required to suspend its regular business, and keep suitors waiting at its bar, while it canvasses, one by one, the 232,195 ballots which the petition before the court below asks to be canvassed again.
Article -2, section 6, of the Constitution provides as follows: “ 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.”
It does not seem necessary to add to what has been said respecting the character of the duties imposed upon the court by this act to demonstrate that every possible avenue for reaching a construction in harmony with said constitutional provision has beén carefully closed by -express provisions of; the act. The only answer to this proposition addressed to us either on Oral argument Or.by printed brief ■ is (a) that this, canvass is required . to be- .made not “ at election,” but twenty months “ after an election,” and (b) that if there were anything in this point it would require a bi-partisan jury in a quo warranto action and a bi-partisan court in mandamus under the Election Law,- . As We have shown, the. court is required by this, act' to .canvass the ballots and make a return thereof precisely the same as the returning boards are' required to do in the first instance, and to do this not for the purpose of correct-' ing. errors, but of entirely superseding their work as though it had never been done. By its writ of mandamus, as we have shown,, the court simply compels said boards to obey' the law, and in quo warranto actions it determines the title to the office ■ -not to whom the certificate shall issue. Elections are held to register the will of the electors, and the-supreme purpose of the constitutional' provision under consideration was that that will should be .ascertained by-bi-partisan boards. In obedience to that provision the Legislature has provided for such boards, and has carefully guarded the canvass *175required to be made by them so as to insure, so far as that may be possible, a correct and honest canvass and return. Each political party or independent body duly filing certificates of nomination is given the right to have two watchers present at each polling place? who may require every ballot canvassed to be exhibited to them •and every protested ballot to be returned as such; and if the inspectors violate the law the court, upon a summary application, may compel by rnandamus obedience, to the law. (See Election Law, §§ 101-114, as amd., and People ex rel. Hasbrouck v. Supervisors, supra.) Would it satisfy the Constitution to have a bi-partisan board go through the farce of counting the ballots, and then at once destroy their statement of canvas's and hand the ballots over to the representatives of a single party upon whose canvass a certificate of election should issue ? Is the Constitution less offended if this be done not immediately,, but twenty months after election, when no' one may know what changes have occurred in the .ballots meanwhile? If the act under review is valid, the Legislature could provide by general law that immediately upon the closing of the polls the ballots should be delivered to the Supreme Court to be canvassed in the manner provided by this act, because what may be done twenty months after election, as a substitute for what the election boards have done, could certainly be done in the first instance, and, if this may be done by the Supreme Court, it may be done by any board or officer. And even though it- be possible to infer from this act that the Legislature intended the court to discharge some judicial function preliminary to making the canvass, and though we hold that the mere ruling upon disputed ballots precisely as inspectors of election have to rule, is. a judicial function, still the fact remains that the real purpose of the act is to have a canvass made de novo, and to nullify the canvass already made without any review thereof. ■ Whether the canvassing of ballots be a judicial function or not, the Constitution has provided how the board must be constituted which discharges that function, and that requirement cannot be satisfied without giving some effect to the canvass made by such board, though of course it need not be conclusive. It may be attacked in a quo warranto action, or in the summary proceedings provided in many jurisdictions as a substitute for quo warranto, but it stands until attacked, and then is *176prima facie evidence. If such canvass were a judicial function, it could undoubtedly be reviewed by certiorari, unless the Legislature, made it final, but, being administrative and ministerial, it may be inquired into in mandamus proceedings, arid corrections compelled, as already shown. If the Constitution is to be heeded, the returns of the constitutional boards must stand, subject of course to- correction as stated supra, until overcome by proof in some appropriate action or proceeding to try the title to the office. The petition before the court below does not allege, and the act does not require that. it should allege, that there is any genuine dispute respecting the correctness of the canvass made by the returning boards; it is not asserted that a single error has been made by a single officer in a single district (as hereinbefore, shown, the. Election Law .provides a summary Way of compelling the correction of such errors by mandamus), and the presumption is. that these officers have obeyed'the law; but, upon the mete chance that another board might canvass- the ballots differently, a substitutionary, not- corrective, canvass is .to. be made. If the Legislature had provided a summary way- of determining a. disputed title to ari office, or - if the canvass réquired by this act had been required as an incident to a quo warranto action, or some other appropriate judicial action’ or proceeding, and not as a mere substitute for the canvass made by the constitutional board, a different question would be presented. It seern's to me little. short of ridiculous to argue that what we all agree would otherwise be an unconstitutional act is valid because the duties created by it are imposed upon the Supreme Court; for to my mind the mere accident that the court was selected to do the Work,of inspectors of election only affects the question to; the extent of aggravating the offense, and an unconstitutional act cannot be- made ■■ constitutional by the requirement that the Supreme Court shall execute it.''
Since, writing the foregoing I have read the opinion of my brother G-ayi$ur, -and -find that every proposition upon which- I based my conclusion is regarded -by him as indisputable, i. e., (a) .that a substitutionary recanvass and recount by a. board not composed as article 2, section 6j of the Constitution réquirés, violates that provision; (b) that the canvassing and counting of votes by election officers is a ministerial duty; (c) that a ministerial duty does-not become judi*177cial by calling it so or by imposing it upon the courts; (d) that a statute providing simply for a recanvass and certification of result by the Supreme- Court would be unconstitutional; (e) that the court is limited by this act to an inspection of the ballots. He reaches a different conclusion by Assuming-that the act provides for a judicial hearing and determination of an election contest. If it were possible to read into the act any such purpose I would agree with him. Surely the fact that the candidates are to be entitled to notice of the canvass and to be represented thereat'by counsel does not make such canvass a .judicial hearing. They are entitled to be represented by watchers at the canvass by the election officers, as shown supra. The Supreme Court cannot be" required to perform ministerial acts which belong to executive or administrative officers, upon the assertion that there is a dispute involved; it cannot be called upon to settle disputes except in a judicial way in some judicial action or proceeding. A dispute is involved in every election, but the Constitution has said that that dispute, so far as it involves the possession of a certifícate of election, must be settled :by boards constituted in a particular manner, and the only way the Supreme Court can take cognizance thereof is by the issuance of its writ of mandamus to compel such boards to obey the law. The dispute which presents a judicial question, for determination in a judicial action or proceeding is the dispute over the title to the office; the trial of that question may involve one or many issues, i. 6., the correctness of the canvass, the regularity of the election proceedings, fraud, and the like, and however few issues may be presented by' the pleadings or tried by the court the judgment of the court will forever settle all. But because only the single issue of the correctness of the count may be-in volved, and because in the trial of that issue the court will examine ballots for the purpose of pronouncing a judgment settling the judicial question of the title to the office it by no means follows that a proceeding is valid which limits the court to the performance of the ministerial duty of canvassing ballots for the sole purpose of performing an act which the Constitution has committed to a bi-partisan board. I do not discuss the cases in which statutes providing for summary trials of election contests were considered, for none of them have the slightest application tothb question, here. *178While the New Jersey .cases, cited supra, do -not directly bear upon the constitutional question before us, as that was not involvedj they do bear directly upon the proposition tliat -this act does hot provide for a judicial' proceeding and are-particularly applicable for • the reason that the judicial question, which it was thought in those cases could only be decided by the. Legislature, is by express words in this act reserved for determination in a proceeding in the ■courts. If. this act provides a judicial review of a prior canvass, it is anomalous in that the court cannot judicially know what it is to review ; if it provides a judicial trial of an election contest for a, ■ certificate of election, as it-is said to, assuming for the moment that such a contest can involve" anything but administrative work or that the court'can. be intruded into it further than to compel the proper performance of such work, then the anomaly is presented of ■ a judicial trial in which the court does merely ministerial work, and an administrative board decides what'the judgment shall be.
If there can be any doubt that this.'tact is ^unconstitutional,. it should be upheld. , Ordinarily my .respect for the opinion's of my brothers, with whom• I differ,'would create such doubt. But the. idea that anything can be spelled out of, or read into, this act, having the ..faintest semblance to a judicial proceeding, seems to me fam . ciful, and Ij therefore, dissent from the decision about to be rendered. ■I. add-that I fully.concur in the opinion of my brother Jenks. ■
• Application for writ of prohibition, denied, with, costs.' •
See art. 2, § 2, subd. - [Rep.]