dissenting. As is shown by the decision filed on January 1, 1957, I dissented on the ground that the petitioner had not preserved the right to question the validity of the absentee and shut-in ballots. I have had an opportunity to examine the extended opinion of the majority on this day filed but am unable to agree with it on this point.
General laws 1938, chapter 319, §7, as amended, provides that after the board of elections has received all the absentee ballots it shall proceed to process, count and preserve them as therein provided. Specifically, the board is directed to see if the name of the voter appearing on the envelope enclosing the ballot is on the check list, and having done so, to open the envelope, remove the ballot and, without looking at the inside of it, immediately deposit it in a covered box. The obvious purpose of the last requirement is to preserve the secrecy of the ballot. This procedure was followed by the board in counting all the absentee and shut-in ballots cast at the last general election and the two groups of lawyers representing the candidates for the two parties were given every opportunity to examine the envelopes before they were opened to see if the ballots in them were cast according to law.
*240Another candidate of the same party, the petitioner in Roberts v. Board of Elections, 85 R. I. 203, 129 A.2d 330, challenged 270 ballots because the envelopes containing them did not bear a notarial seal or its statutory equivalent as required by said chap. 319. In each case, the board, before opening the envelope, covered the voter’s name with masking tape to preserve the secrecy of his ballot and then took out the ballot and gave it and its envelope the same number to preserve the identity of the ballot should this court be later asked to pass upon its validity. In view of the command of the statute, this was at least a proper way to preserve the identity of the ballot, for once the unidentified ballot was put into the locked box with the other ballots it could never be matched up with its equally unidentified envelope. When either party challenged a ballot on this or any other ground the same procedure was followed. Neither party objected to this procedure and neither can now object to it. The shut-in ballots and the objections thereto' were handled in the same manner as the absentee ballots.
After all the absentee ballots had been counted, the result was made known and the same was done in regard to the shut-in ballots. It was not until about two weeks after all the absentee ballots had been counted and about a week after all the shut-in ballots had been counted that the petitioner for the first time objected to any of them on the ground that they had been cast under an unconstitutional statute. He then protested and moved that the board consider none of them in the final count. As stated by the majority, he did at that time request the board to have the inner envelopes which contained the ballots cast by absentee and shut-in voters at said election segregated and marked for identification.
When this case was decided on January 1, 1957, I thought this petitioner, like the petitioner in Roberts v. Board of Elections, 85 R. I. 203, 129 A.2d 330, had failed to ask the *241board to identify the ballots at the time he made his motion to have them excluded from the final count. My mistake in this regard has recently come to my attention and I freely admit it, but as I then stated to my brethren and continue to maintain that the petitioner should have had the ballots and their envelopes marked for identification at the time the envelopes were opened long before he made his motion, my mistake is of no legal significance. Otherwise, I would abandon my dissent if such a thing is now possible.
A few days after he made his motion the petitioner filed this petition for certiorari and in his brief and oral argument before us contended that he had properly preserved the right to challenge all the absentee and shut-in ballots, relying solely upon the following quotation from the opinion in Brereton v. Board of Canvassers, 55 R. I. 23. I quote from page 5 of his brief immediately after he cites that case. “In that case the court said at page 30, citing with approval the case of Adams vs. Glen, 53 R. I. 41 and commenting upon the decision rendered in said case:
'Clearly the court then was of the opinion that in such proceedings only ballots, the rulings on which by the board of canvassers had been objected to before the board and which therefore should have been marked by the board for identification; should be considered by the court. Moreover, the view of the court then clearly indicates that if rulings of a board late in the counting of ballots of any election make one of the candidates wish to object to the ruling on any ballot previously counted or rejected, he still can and should make such objection and have the ballot marked for identification at any time before the counting is finally concluded and the decision made/ ”
I do not read the rule of the quotation from the Brereton case to mean that a' candidate can delay asking the board to identify ballots until a time when it cannot do so because of his earlier failure to have them identified when they could have been identified. And this is so, although at the time of the late request the ballots are still in the custody *242of the board and it is still counting ballots. That is just the situation in this case.
Further on in the Brereton opinion the court gave what has always seemed to me its reasons for the rule of the quotation when it said, pp. 31, 32, that to have the marking, segregation and rulings made in this court would be to make this court a super counting tribunal rather than a reviewing one and so it would not allow these things to be done there for the first time.
Had the petitioner challenged each ballot when its envelope plainly showed on its face when it had been cast and had such ballot and its envelope been identified with the same mark, as was done in the case of the 270 ballots, the board could at any time while the ballots were in its custody have determined for which of the contestants the good and bad ballots were cast, for it is for that ultimate purpose that identification is required.
The motion was to have all ballots disregarded in the final count and since some of them were entitled to be counted, said motion was too broad and was properly denied. Hampson v. Taylor, 15 R. I. 83, 87 (1885).
When the petitioner made his late motion doubtless he thought that all ballots were bad just as he doubtless thought that all the ballots were good when he failed to have them identified when identification could have been made but the fact that he was wrong in both instances does not change the vital fact that the ballots cast before election day were bad and those cast on election day were good. Courts do not make the law; they only declare what it was at the crucial time in the past. These ballots were always good or bad depending upon the time they were cast.
But the majority holds that the Brereton case does not rule this case on this point. It says in part: “The petitioner’s claim of unconstitutionality also raises basically the question of the jurisdiction of the board of elections to count any of the civilian absentee and shut-in ballots. If *243the amendatory statutes in question are invalid, then the civilian absentee and shut-in electors had no legal right to vote in the first instance. It necessarily follows that the board likewise had no legal right or authority to count such ballots. It is fundamental in our system of government under law that the question of jurisdiction over the subject matter can be raised at any time.”
I respectfully disagree with the majority that the petitioner raised the question of the jurisdiction of the board to count the ballots. He simply attacked the validity of the ballots which had long before been counted without objection by him — two profoundly different legal situations. It is abundantly clear that he did not consider that he had raised a jurisdictional question for he relied solely upon the Brereton case which did not involve jurisdiction. Nevertheless there can be no question of the right of the majority to reject the position taken on this point by the lawyers for both parties and to decide it on any ground it chooses. Neither can there be any question of the right of an appellate court to dismiss a case for lack of jurisdiction in the lower court over the subject matter and this too without being asked so to do.
I take this occasion to state that when this case was decided on January 1, 1957, the majority raised the question of lack of jurisdiction and rested its decision on this point of a lack of jurisdiction and that I then expressed my disagreement with its position.
There has never been any doubt in my mind of the board’s jurisdiction, using that term as it has long been understood to mean — the power conferred by law upon a tribunal to enter upon the inquiry — the subject matter — here the counting of ballots. That power includes the power to make, in the course of the inquiry, erroneous rulings. It has also long been settled that such erroneous rulings are final unless they are reversed at the instance of the person against whom they are made, who has preserved his right *244to have them reversed by taking the proper steps at the proper time in accordance with the rules governing the inquiry, e. g., the rules of the Brereton case.
Said section 7 conferred jurisdiction upon the board to count all the ballots not just those validly cast. The board of canvassers of Warwick had a like jurisdiction. The counting of each ballot is not a separate case. A tribunal that has jurisdiction to take an .account, e. g., that of an executor, administrator or a trustee, has jurisdiction to allow items that should not be allowed. That is mere error in the exercise of jurisdiction, just as here it was mere error for the board to count, as it came to them, ballots cast before election day — error to be preserved for review as provided in the Brereton case.
The majority says that we are not concerned with certain ballots not properly marked in accordance with law. This was the situation in the Brereton case. That case did not involve a question of jurisdiction. I am unable to see, at least for jurisdictional purposes, any substantial difference between ballots invalid because they bear distinguishing marks and ballots invalid because their envelopes lack notarial seals or ballots invalid because they were cast before election day. In each case the ballots are invalid and no more or less so than in the other two cases.
I have examined the cases cited by the majority and they are in point on the question of the right of an appellate court to raise the lack of jurisdiction of the lower court over the subject matter without being asked so to do, but I find nothing in them that shows that in this case we have a lack of jurisdiction in the board.
State Loan Co. v. Barry, 71 R. I. 188, cited by the majority, was an action at law commenced by a writ wherein the ad damnum was fixed at $1,000 returnable to the superior court. This court referred to the statute which provided that the superior court shall have exclusive original jurisdiction only when the damages laid in the writ shall exceed *245$1,000 and that the statute also provides that the district court shall have exclusive original jurisdiction of all civil actions wherein the damages laid in the writ do not exceed $1,000. Here we have a perfect illustration of lack of jurisdiction over the subject matter but it has no application to the facts of this case.
Jurisdiction must be conferred by the constitution or by statute and what better illustration of this rule can be found than in the very opinion of the majority. The intervenor moved to dismiss this case because he claimed that the petition showed on its face that this court lacked jurisdiction to hear it because the constitution makes each house of the general assembly the sole judge of the election and qualification of its members. I agreed with the majority that the reasoning of Mr. Justice Douglas in State v. Town Council, 18 R. I. 258, is more convincing than that of the dissenter Mr. Justice Stiness who, unlike his associates, did not abandon the first opinion in that case. That does not mean, however, as might be inferred from the statement of the majority at the end of its consideration of that motion that I agreed that we should proceed to hear the so-called merits of this case. I did not so agree because as I have stated in my dissent filed on January 1, 1957, the petitioner had failed to preserve “the right to question here the constitutionality of the absentee and shut-in ballots.”
Since my dissent was grounded solely upon the failure of the petitioner to properly preserve his right to be heard at all on the substance of his petition, had I received any support from my brethren the petitioner would have been stopped right .at the threshold of the court. Such being my position I have confined this opinion strictly to the reasons that led to my position and to the reasons why I could not agree with the majority that we were dealing with lack of jurisdiction. Consistently with that position I have not discussed here anything concerning the court’s decision of January 1, 1957 on the merits, except to emphasize the *246words of my dissent thereto, namely: “If this question is properly before us.”
John C. Burke, Daniel J. Murray, for petitioner. Stephen F. Achille, for respondent Board of Elections. Coleman B. Zimmerman, Alfred H. Joslin, Thomas H. Needham, Ray H. Durfee, Hinckley, Allen, Salisbury & Parsons, Tillinghast, Collins & Tanner, Albert A. Nutini, Harold H. Winsten, for intervenors.If it be said that my dissent is based on a procedural point, my answer is that it was upon this procedural point that this court refused to hear the merits of the Brereton case.
For the foregoing reasons it is my judgment that the instant decision should read: “The petition is denied and dismissed, the writ is quashed, the restraining order heretofore entered is dissolved, and the records certified to us are ordered returned to the board of elections with our decision endorsed thereon.”