The relator applied to the Supreme Court for a writ of mandamus directing a recanvass of void and blank ballots in certain election districts of Richmond county. An application was made under section 381 of the Election Law. After a hearing the motion was granted and a recanvass of these ballots directed. The Appellate Division modified the order granting the writ and allowed the relator to inspect the ballots and nothing more. If it should appear that they were erroneously disposed of then it was ordered that a mandamus might issue. It is claimed here that the Appellate Division had no power given it by the Election Law to make such an order and that the mandamus in the first instance granted by the Special Term was improper as not based upon sufficient facts. *Page 13
There are two remedies granted by the Election Law, sections 374 and 381. Section 374 authorizes the examination of ballots, but does not provide any remedy in case the ballots are defective or improperly voted and counted. This section came from the Election Law of 1896, chap. 909, section 111. It referred only to the ballots contained in the sealed ballot boxes and read:
"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. * * *"
The Consolidated Laws (Laws of 1909, chapter 22) contained the same provision which applied only to the ballots securely locked and sealed in the ballot box. By chapter 821 of the Laws of 1913, section 374 was amended by adding thereto a separate and distinct clause. It continued the provision already existing in the law as above stated, reading as follows:
"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," and extended the right of examination in these words:
"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."
This examination as of right applies to all ballots, those in the box as well as the protested, void or blank ballots.
Not only is this the plain reading of the provision but the change in the title of the section indicates that all ballots voted on election day were intended to be included in this quoted sentence. *Page 14
Section 374, as found in the Consolidated Laws, is headed, "Preservation of Ballots not Void or Protested." Nothing is said in the section about keeping the protested ballots. The amendment of the section made in 1913 commenced with these words: "Preservation of ballots." It provides how the ballots voted shall be securely locked and sealed in boxes. It further provides: "The protested, void and wholly blank ballots shall be preserved as provided in section 437 of this chapter." After these words follows the sentence above quoted that any ballot may be examined as of right. It is quite clear to my mind that this amendment of 1913 applied both to the ballots in the sealed boxes and to the protested, void or blank ballots.
Prior to the amendment of 1913 it was decided by this court that the provisions in the then existing law giving power to the courts to open the ballot boxes and examine the ballots was only to be used in judicial proceedings pending or about to be commenced. (People ex rel. Brink v. Way, 179 N.Y. 174;Matter of Hearst v. Woelper, 183 N.Y. 274; People ex rel.Brown v. Freisch, 215 N.Y. 356.)
This limitation no longer applies to the amendment of 1913. The examination is given as of right to a candidate whose name appears upon the ballot. (Matter of Quinn, 220 N.Y. 623.)
If this relator had applied for an examination of the ballots under section 374 of the Election Law as it now reads I am of the opinion that his papers were sufficient to have justified an order permitting such inspection.
His application, however, was made for a mandamus under section 381 of the Election Law. He is not entitled to the mandamus as a matter of right. This section applies only to the protested, void or blank ballots. It says that a mandamus may issue requiring the election inspectors to recanvass these ballots. The *Page 15 facts, must, therefore, be set forth in the moving papers justifying the court in directing that mandamus issue. It is not sufficient to show merely that such ballots existed. It should appear that they have been improperly classified or counted. The general practice in applications for mandamus must be complied with and if facts are not stated upon knowledge but upon information and belief the sources of that information must be given. The papers in this case are defective in that the reason for the mandamus is stated upon information and no sources of information are set forth. The relator says that he believes that ballots marked opposite his name in two columns have been set aside as void or blank ballots. If this be so the relator would be entitled to a mandamus under section 381 (People ex rel.Feeny v. Board of Canvassers, Richmond Co., 156 N.Y. 36) but the mere statement of his belief that such is the fact is insufficient. (Buell v. Van Camp, 119 N.Y. 160-165.)
The Appellate Division would, therefore, have been justified in reversing the order of the Special Term, but this it did not do. It made an order in a proceeding under section 381 for an examination of the ballots. No such right is given by this section. The order for the examination could have been made upon these papers, as I have above stated, under section 374, but no such application was made. This is a special proceeding allowing a recanvass. The relator has not applied for an examination under section 374, but believing that he had facts sufficient immediately applied for the mandamus.
It may be said that as he could have had an examination under section 374 upon these papers there is no harm in the order of the Appellate Division granting it to him although he has not asked for it. The answer is that in election matters the courts have no power to interfere with the count except as that power is conferred by statute, and then the statute must be carefully followed. *Page 16 Here the statute allowed a mandamus to recanvass the votes and the relator has sought that remedy. He must fail because of the insufficiency of his papers. No authority is given for an order of examination in such special proceeding. The relator has not asked for an examination and inspection under the other provision of the law and the two should be kept separate and distinct. Under section 374 an examination only is permitted and no remedy provided for a recount as in section 381.
The order appealed from is, in my opinion, a final order. It authorizes an inspection and an examination of the ballots, as if the application were under section 374 of the Election Law.
For the reasons above stated the order appealed from should be reversed.