(dissenting.) The order from which this appeal is taken directs the issuing of a peremptory mandamus to the defendants, requiring them-“forthwith to sign the election return heretofore filed in the office of the county clerk of liensselaer county, and to certify to the correctness thereof. ” The defendants, in answer to the motion, state that they did not sign the returns, for the reason that the same are incorrect; that there were not given in said election district the number of votes therein named; that there were not received by the various candidates the number of votes therein stated; and further state that there were upwards of 70 votes put into the ballot-boxes from which' these returns are made without, having been received by the board of inspectors, or a majority of them. This statement is sworn to by the defendants, who constitute half of the full board of inspectors. Their affidavits are entitled to at least as much weight as that of the relators. The evi*258dence before this court is equally balanced as to the correctness of the returns in question.
If the order contemplated the making and signing by the defendants of a return of the election, it might not be offensive to their sense of propriety. Such an order would be well sustained by judicial authority. If these defendants were contumacious, and refused to make any return, it would be proper for this court to give them direction, not to make or sign any particular return, or to certify to the eorrectness'of any particular return,'but simply to make a return of the election. See People v. Common Council, 78 N. Y. 33. But the order calls upon the defendants to certify to the correctness of the return now on file, made up by the relators, who were associate inspectors, and which return defendants protest under oath is not correct, but is false in substantial particulars. By this order the defendants are required, by a peremptory mandamus, to certify to the correctness of a thing which they say they know to be incorrect; which they know to be a false return; in fact, to commit an act which, if voluntarily done, would be a crime, and render them liable to indictment.
I do not think that the arbitrary and extraordinary powers of this court ought to be exercised to enforce action upon such doubtful premises, and, above all things, to require public officers, acting under a solemn oath, to do a thing which they protest will be untruthful when. done. There is no precedent for such action in any case where there was a bona fide dispute about the facts. It is only in clear and unquestionable cases that this extraordinary process is called into action. See People v. Supervisors, 64 N. Y. 600; People v. Wendell, 71 N. Y. 171; People v. Campbell, 72 N. Y. 497; People v. Hines, 10 Wkly. Dig. 88. Even if it be conceded that inspectors of election are strictly ministerial officers, having no judgment or discretion to exercise, and who may not, under any circumstances, reject the vote oí any person who presents himself,, and takes the formal oath, no matter how transparent a fraud is perpetrated, still they ought not to be compelled to certify to the correctness of that which they do not believe to be true, or that which they protest is not true. But I am unwilling to hold that the election inspector is nothing, unless it be a clerk of the election, bound to receive and deposit in the ballot-box the votes of all who may be willing to take the prescribed oath, and whose only duty or authority beyond that is to count the ballots, and certify the result. One inspector could do that, with the aid of the watchers, to see that the count was right. Why is a board of inspectors provided, if they have no judgment to exercise in any case? And especially why is there provided for the city of Troy a non-partisan board, made up of two members from each political party, unless there is something to be done or determined upon which the minds of men may differ? It is claimed by the learned counsel for the relators, in his very able argument, that every person who offers his vote, if he takes the oaths required, determines for himself the question of his right to vote. If he testifies that he is the man named on the registry as John Doe, and that he resides at the place named, and thus fills out the formal requirements, his vote must be accepted by the inspectors, even though they all know that he is not the John Doe entered on the register, and know that he is not entitled to vote. Can this be so? Is it possible that a board of election inspectors, consisting of four members, must stand by and see an open fraud upon the franchise committed, knowing it to be such, and yet without power to prevent it ? It is plain that such a holding must lead, not only to ttie forced reception and count of the unlawful votes, but to the exclusion and disfranchisement of those entitled to vote whose places upon the registry are usurped. There may be many John Smiths residing in the same election district, some of whom are registered and entitled to vote, others not. Is there no power in a board of inspectors, so far as they know, to see to it that the genuine John Smiths are not robbed of their franchises by those who assume their *259place on the register? Is it the law that a board of election inspectors have no power or right to decide between conflicting claims which may be made to fill the places of the registered John Smith? Must the inspectors accept the votes of the first men who come, and who come early, when they know that the early comers are not the true electors? It must be kept in view that inspectors of election are public officials, whose duty it is to preside at the elections. It would seem as if they should be clothed with power to protect the ballot-box against such frauds as appear openly, and are known to them.
In the case before us the defendants make affidavit that more than 70 votes were put in the ballot-boxes in question without the consent or action of the board of inspectors, and which came from persons who they knew were not legal voters, and who were not registered. These ballots were taken and deposited in the ballot-boxes by one or two of the inspectors, against the protest of defendants, who constituted half of the board, and were not, therefore, received by the board. If this statement is true, the ballot-boxes contained the large number of ballots referred to, which had not, in contemplation of law, been received by the inspectors, any more than if the persons who offered them had, with strong hand, made the deposit. And if the ballot-boxes were thus freighted with such ballots, deposited without the direction of the board, no correct count could be made of the votes received.
The omission of the inspectors to make a return will not have the effect to destroy the votes of the legal electors, or prevent the election of any candidate who received a majority of the legal votes. It will leave it open to other modes of proof to ascertain the result. A great inconvenience may result, not so great, however, as may come if the principle upon which this order is granted shall prevail.
With great deference to the opinion of my distinguished brethren, and fully impressed with the desirability, on so vital a question, of harmonious judicial results, I am nevertheless persuaded that the extraordinary powers of this court will not be well exercised by directing a mandatory writ to these defendants, requiring them to certify to the correctness of a return which they protest is not correct or true. With mucli reluctance, therefore, I dissent from the conclusions of a majority of the court.