I dissent in one particular from the decision of the majority of the court. While the learned court at Special Term granted the application for the examination of the ballots, it provided: “ Such examination shall commence at 9 o’clock A. M. on the day following the issuance of the Certificate of Election as Governor by the Secretary of State, as provided by Section 443 of the Election Law, and continue thereafter daily without intermission so far as possible, to the end that such examination be completed at the earliest possible moment.”
In my opinion, there is no warrant in law for the delay. The order should have provided that the examination commence forthwith, in order that such examination be completed at the earliest possible moment.
Our election laws evidence a steady purpose to insure to the citizens of the State a fair election and an honest count, to the end that all men may accept with confidence the announced result and that those elected may take office with clear title. As it is of the utmost importance that no interregnum occur, the law provides for a prompt decision by the several boards of inspectors, who, in their several districts, are to canvass the vote and announce the result as soon as possible after the close of the polls on election night and forward their returns to the board of elections and the county clerk. The canvass of such returns is to be made shortly thereafter by the board of county canvassers, who in turn forward the results to the Board of State Canvassers, in the case of State officers, who canvass said returns and issue the certificate of election based thereon to the successful candidate.
The law since 1896 has provided for the preservation of the original ballots. Section 374 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1913, chap. 821, and Laws of 1916, chaps. 31, 537) now reads as follows:
“ § 374. Preservation of ballots. After the last tally sheets and returns are completed, and all the stubs and ballots, except the protested, void and wholly blank ballots, are replaced in the boxes from which they were taken, each box shall be securely locked and sealed, and deposited, by an *240inspector designated for that purpose, with the officer or board furnishing it, together with the separate sealed package of unused official ballots. The boxes and packages so deposited shall be preserved inviolate for six months after the election, except that they may be opened and their contents examined upon the order of any court of competent jurisdiction or may be opened by direction of a committee of the Senate or Assembly to investigate and report upon contested elections of members of the Legislature voted for at such election and their contents examined by such committee in the presence of the officer having the custody of such boxes. Unless ordered to be preserved by such a court, or unless an examination by such a committee be pending, they shall be opened and their contents destroyed after six months, except, that in a year in which a President of the United States is to be elected, in counties in which no contest has been noted, such boxes may be opened and their contents destroyed after four months and the boxes prepared for use at the primary election as provided in section seventy-nine of this chapter. The protested, void and wholly blank ballots shall be preserved as provided in section four hundred and thirty-seven of this chapter. Any candidate shall be entitled as of right to an examination in person or by authorized agents of any ballots upon which his name lawfully appeared as that of a candidate; but the court shall prescribe such conditions as of notice to other candidates or otherwise as it shall deem necessary and proper.”
The source of this section was section 111 of the former Election Law (Gen. Laws, chap. 6; Laws of 1896, chap. 909) which provided: “ Each such box shall be securely locked and sealed, and shall be deposited with the officer or board furnishing such boxes. They shall be preserved inviolate for six months after such election and may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county, and at the expiration of such time the ballots may be disposed of in the discretion of the officer or board having charge of them.”
The Court of Appeals passed upon that provision in People ex rel. Brink v. Way (179 N. Y. 174) and Matter of Hearst v. Woelper (183 id. 274) where the court held squarely that there was no power conferred upon the court to order a recount *241of the ballots, saying, “ Section 111 * * * quite plainly has for its purpose the preservation of the ballots, which have been counted as valid by the election board, for use in judicial, or legislative, proceedings, as evidence upon which to determine the title to an office assumed.” In the latter case Judge Gray said: “ The power to open a ballot box is conferred by section 111 and is confined to an examination of the contents. A good reason may be found for the non-interference of the court with the ministerial work of the election officers in the higher necessity that the result of a public election shall be promptly made known. It is a wiser policy that the result shall not be still left in uncertainty, after its proclamation by the board of inspectors at the close of the canvass. It is impolitic that the administration of governmental affairs should be permitted to be embarrassed through the delays occasioned by a judicial reopening of the canvass, at the instance of any defeated candidate. Some finality of action on the part of the election board was intended and the power to review appears to be confined to the decision upon ballots rejected as void, or as marked for identification (sec. 114), leaving any further examination of the ballots, which have been counted without objection and sealed up, to be made in the proceeding instituted by a defeated candidate to try the title of his successful opponent to the office.”
In People ex rel. White v. Board of Supervisors of County of Albany (192 N. Y. 539), which was an appeal from an order of the Appellate Division in the Third Department, which affirmed an interlocutory judgment of the Special Term sustaining a demurrer to an alternative writ of mandamus, the court answered the second question certified, which was as follows:
“ Has the Supreme Court jurisdiction under section 114 of the Election Law or under its general power, authority and jurisdiction to determine in this proceeding as to the validity of the ballots mentioned in said writ, contained in the boxes deposited with the said city clerk, and to order a recount and recanvass of such ballots such as provided by said section 114? ” in the negative and affirmed the order. And in People ex rel. Brown v. Freisch (215 N. Y. 356) the court in pro*242nouncing its opinion said: “ While the court may, under section 374 of the Election Law, upon the application of one who is a candidate for office at the election, permit a ballot box to be opened and the ballots upon which the name of the applicant candidate lawfully appears to be examined, the authority therein conferred is limited to an examination of the ballots. Jurisdiction is not granted to a direct recount or recanvass of such ballots.” (Citing People ex rel. Brink v. Way, 179 N. Y. 174; Matter of Hearst v. Woelper, 183 id. 274.)
• It seems to me plain, therefore, that there is no ground for the apprehension, expressed upon the argument in the matter at bar, that to permit an examination of the ballot boxes would interfere with or delay the canvass of the votes or the announcement of the result thereof and the issuance of the certificate of election, because it has been finally and decisively adjudicated by the court of last resort that there can be under the law no recounting of the voted ballots in the sealed ballot boxes which can affect said canvass. The void, protested and wholly blank ballots, which are placed in the envelopes, may be examined, and the board of elections may be mandamused to correct inaccurate returns in regard to them, but that is an entirely independent proceeding, provided for in the Election Law (§ 381, as amd. by Laws of 1913, chap. 821), familiarly followed in every election and a prescribed part of the general process of canvassing the vote. The provision “ Any candidate shall be entitled as of right to an examination in person or by authorized agents of any ballots upon which his name lawfully appeared as that of a candidate; ” was added to section 374 by chapter 821 of the Laws of 1913, and undoubtedly was the result of the protracted efforts in the McClellan-Hearst election case to obtain evidence to satisfy the Attorney-General that there were proper grounds to authorize a quo warranto proceeding. The first application was denied by the then Attorney-General upon the ground that the applicant had not made out a prima facie case. The language seems as broad and comprehensive as it was possible to make it. “ Any candidate shall be entitled as of right * * *,” and the Court of Appeals in Matter of Quinn (220 N. Y. 623) said: “ The order should be affirmed under the provisions of section 374 of the Election Law, which is broad *243enough in its terms to entitle any candidate voted for at the time of a general election to an examination as of right in a proper case of any ballots upon which his name lawfully appears as that of a candidate whether the validity of the election is in controversy or not.” (See, also, Matter of Rush, 101 Misc. Rep. 319; affd., 180 App. Div. 889.)
But it is claimed that the phrase in the statute “ but the court shall prescribe such conditions as of notice to other candidates or otherwise as it shall deem necessary and proper,” qualifies the absolute right theretofore conferred. I do not agree with this contention. The clause is separated from the preceding absolute gift of power by a semicolon, and, to my mind, is limited to the notice that has to be given. There are substantial reasons why as prompt an examination as possible of the original ballots in the sealed ballot boxes should be made. Recent election litigation has demonstrated the danger of procrastination. The prosecution of a case of quo warranto at best is long and difficult. A prompt examination may put an end at once to any such action. If a basis for it is disclosed a proceeding may be promptly instituted. Delay affords opportunity for tampering with the boxes. The earlier the examination the stronger the probative value of the evidence.
No good reason has been presented which satisfies my mind that the delay asked for should be allowed. The certificate of election is rarely issued before the end of December. I cannot think the court is justified so to delay the exercise of the applicant’s conceded absolute right of examination.
I think the order appealed from should be modified by striking out the words in the 3d paragraph: “ On the day following the issuance of the Certificate of Election as Governor by the Secretary of State, as provided by Section 443 of the Election Law,” and inserting in lieu thereof, “ one day after the entry and service of the order entered hereon,” and as so modified affirmed, without costs to either party.
Smith, J., concurred.