officers are under a duty to perform the preliminary acts, and if they do not perform them, they may be criminally prosecuted for their neglect or willful disregard of the requirements of the law. Id.

The duties of inspectors are restricted to counting the votes contained in each box at the close of the polls, and the number of votes cast for the respective candidates, and they have no power to pass judicially upon the validity or invalidity of any such votes. People ex rel. Stapleton v. Bell, 27 N. Y. St. Rep., 39. They can not reject the vote of persons challenged because their answers were not satisfactory. No discretion is left to them, as to receiving or rejecting the vote of one who has taken the general oath of qualification, when he is not shown by a record to have been convicted of crime or by his own oath to be interested in a bet upon the election. They must deposit the ballot in the box, whatever they may believe or know of the want of qualification of the voter. Id. They are required to act upon the evidence which the statute prescribes and have no judicial power to pass upon the question of its truth or falsehood, nor can they act upon their own opinions or knowledge. Id.

While there are cases in which the court has the power to direct a board of inspectors to reconvene and correct a canvass, to canvass votes which they have refused to canvass, or to refrain from canvassing votes that they have already erro neously canvassed and counted, the court can not direct the return of the ballots to the inspectors in order that they may make a recount, or direct the ballots to be brought into court, in order that they may be recounted and a correct determination of the result reached. People ex rel. Blodgett v. Board, etc.; People ex rel. Van Derzee v. Sickler, 44 N. Y. St. Rep., 738.

Boards of inspectors of election and canvassers have no power conferred upon them to correct frauds or rectify mistakes, except clerical ones. Id. Their duty is simply to count, in one case, the ballots actually found in the ballot box at the close of the polls, and, in the case of canvassers, to add together the statements of results filed with them by the inspectors. Id.

The remedy for frauds and mistakes, other than clerical, is by proper proceedings in court or before the board or body, to membership in which the person aggrieved is a candidate, where that board or body has the power conferred upon it to determine the qualification and election of its own members. Id.

The election officers, from inspectors up to the board of state canvassers, are not vested with power to decide anything. Id. They are simply to receive and afterward count what they have received; the inspectors, the ballots; the board of canvassers, the returns made by the inspectors. Id.

If the ballots in form and character comply with the law, and the voter's name appears on the registry and he takes the prescribed oath, the inspector is bound to take the ballot and count it. Id. If the statement comes from the inspectors of election and is correct in form, the board of canvassers is bound to receive and canvass it. Id. All questions of fraud or mistake, except clerical ones in the statement, are to be passed upon by the courts or such other tribunals as are designated by statute. Id. The law is careful to impose upon inspectors and canvassers no duty except to receive and count. Id.

A writ of mandamus does not lie to compel an officer, exercising judicial functions, to make any particular decision, or to set aside a decision already made. People ex rel. Gaige v. Reardon, 49 Hun, 425; People ex rel. Millard v. Chapin, 104 N. Y., 96. Where inspectors of election have proceeded illegally in counting the ballots and have made and filed their report with the proper officer, a mandamus will not issue to compel them to reconsider their action, or to act in a certain manner. People ex rel. Gaige v. Reardon, ante. Upon making and filing its certificate, the board has fully discharged its official duty, and, therefore, become functus officio as a board. Id. A writ directed to it would be of no effect, since it can not legally again convene as a body and undo the acts done at a prior time when in the proper discharge of official duty. Id. An inferior tribunal, when it has assumed to act and by mistake or otherwise has acted irregularly, can not be treated as not having acted at all. Id. In such case the error committed can not be remedied through the instrumentality of a writ of mandamus. Id.

A judge at chambers in the city of New York, or elsewhere within the State, has no jurisdiction to issue a writ of mandamus. People ex rel. Lower v. Donovan, 47 State Rep'r, 834; 63 Hun. 512; rev'g 45 State Rep'r, 141. As no court can be opened on the day of general election, no such writ can be issued on that day to compel an inspector of election to accept a vote. Id.

An official ballot, upon which is the mark of a printer's quad, in the absence of proof that it was so marked for an illegal purpose, is not a marked ballot, and a mandamus cannot issue to compel a board of canvassers to reject it. People ex rel. Hasbrouck v. Board, etc., 48 State Rep'r, 533.

The laws condemn ballots marked for indentification, and such marking strikes at the very root of the reform ballot system. Id. If during the canvass some election officer, or some authorized watcher, who in a sense represents the constituents of his party, questions the marked ballot on the ground of the marks, the first important step has been taken. Id. The other preliminary acts are devolved upon the election officers not representing, or under the control of, any candidate. The courts, in the mandamus proceeding, must determine whether, under the circumstances of the particular case, there has been such a substantial compliance with the statute as will enable the candidate complaining of marked ballots to maintain the proceeding. Id.

A candidate, intending to proceed by mandamus under section 114, ante, should procure an alternative writ. Id. In such case, if there should be any dispute about facts, it can be settled before the peremptory writ issues. The opposing candidate should be permitted to intervene so as to protect his rights. Id. If a peremptory mandamus is applied for it must be upon notice (see § 2070 of Civil Code), and then, if the facts upon which the application is based are undisputed or admitted, and are sufficient to authorize the writ, questions of law only are involved, and the writ may issue in the first instance. Id.

It is only where an inspector of election, or other election officer or duly authorized watcher, has during or immediately after the completion of the canvass, declared his belief that certain ballots were marked for identification, that a peremptory mandamus can be granted to compel the attaching of such ballots to the certificate or statement of the canvass. People ex rel. Bush v. Board, etc., 49 State Rep'r, 527; 66 Hun, 265; aft'g 48 State Rep'r, 791.

The unauthorized printing of the name of the office of excise commissioner and the candidate therefor upon the town ballot makes it a marked or a defective ballot. People ex rel. Bradley v. Shaw, 45 N. Y. State Rep., 533. But this does not of itself vitiate the ballot, or justify the inspectors of election or board of canvassers in rejecting it. Id. It is only when it is marked with the intent that it may be identified that it is to be rejected, and that rejection is not to be made by the inspectors. Id. The ballot is not to be excluded until the intent is ascertained and determined by the court. Id.; People ex rel. Nichols v. Board of Canvassers, etc., 129 N. Y., 395, 407. The court shall determine whether the mark on the ballot is placed there with the intent of subsequently identifying the ballot and tracing it to the voter. Id. If it can find no such intent, the ballot is to remain as counted.

A ballot endorsed "Excise" is an official ballot for the purpose of voting for excise commissioners, but is not an official ballot for the purpose of voting for other town officers. People ex rel. Sherman v. Person, 45 N. Y. State Rep., 528. A ballot with the names of candidates for town offices printed upon it and endorsed "Excise" is not legally endorsed under the law, and is not an official town ballot within the meaning of the statute, and cannot be legally received or counted by the inspectors. Id. The legal effect is not changed if the names of the candidates for town officers are printed on another piece of paper, and that paper pasted on the ballot endorsed Excise." Id. The inspectors are prohibited from receiving any ballot having any mark on the outside or not properly endorsed. People ex rel. Bradley v. Shaw, 45 N. Y. State Rep., 533. But if anything appears on the inside of the ballot not authorized by law, they are required to preserve such ballot. Id. In such case, those interested may have ample opportunity to deliberately investigate the matter, and if, after such investigation, they think proper, to present it to the court for its determination. Id.

Votes cast for a candidate for excise commissioner can not be counted for him where the name is not upon a ticket legally endorsed as an excise ballot. People ex rel. Bradley v. Shaw, 45 N. Y. State Rep., 533, 866; People ex rel. Sherman . Person, id., 528.

Where the relators, who are nominated for the several town offices at an inde pendent meeting or caucus, were obliged to have paster ballots printed at their own expense for use at the polls, and which they pasted upon the official ballots endorsed Town," and where all of these paster ballots had printed upon them

the name of the candidate for the office of excise commissioner, it was held that this did not make them marked ballots, and that it was the duty of the inspectors to have counted the ballots for the other candidates named thereon, in declaring the result of the election, and that they could be compelled to do so by a peremptory writ of mandamus. People ex rel. Bradley v. Shaw, 45 N. Y. State Rep. 866.

The regular ballots are those which conform to the provisions of the statute, while the "marked ballots are those which are prohibited." People ex rel. Bidelman v. Bradshaw, 69 Hun, 596.

66

Marked ballots" do not operate to render void the ballots that are regular and in accordance with the provisions of the statute. Id.

To hold that the casting of a marked ballot " renders void the regular ballots, and invalidates the election, will leave it within the power of a few evil disposed persons to nullify elections and deprive citizens of their right of suffrage.

Id.

The objection to ballots on the ground that they are marked must be made at the canvass by the inspectors of election. People ex rel. Hirsh v. Wood, 148 N. Y. 142. A ballot furnished by the State is not a narked ballot within the law because of any irregularity in making it up or printing it. Id.

The granting of the alternative writ of mandamus is so much a matter of discretion that it is not the subject of review upon appeal. People ex rel. Ranton v. City of Syracuse (Sup. Ct., 4th D., 1895), 88 Hun, 203.

Inspectors of election are ministerial officers and may properly be compelled by mandamus to make a further return of the results of an election, where it appears that the return made contains clerical errors and that the canvass of the votes cast was in some respects conducted in violation of the Election Law. People ex rel. Ranton v. City of Syracuse (Sup. Ct., 4th D., 1895), 88 Hun, 203. Where an election return has been made, but is irregular in that it does not show that any person received any votes whatever, and the alternative writ of mandamus has been issued sending back the return for correction and review, and the person who is apparently elected on the face of the return moves to quash the writ, he cannot, by presenting, on the argument of the motion, a consent to certain corrections, avoid the force or necessity of a writ of alternative mandamus. Id.

The meaning of the statute is that the marking of ballots for identification must be by the voters themselves. Matter of Hirsh (Sup. Ct., Sp. T., 1895), 14 Misc. 377. The mistake of the county clerk cannot be attributed to them. Id.

But the case of ballots alleged to be marked for identification is carefully provided for by the statute.

The canvassers are obliged to count the ballots marked for identification, but they have to annex them to their return. Matter of Hirsh (Sup. Ct., Sp. T., 1895), 14 Misc. 377. The Supreme Court is then given jurisdiction to determine whether they were marked by the voters for the purpose of identification, and, if so, to have them deducted from the totals by the canvassers of election. Id.

ARTICLE VI.

County and State Boards of Canvassers.

Section 130. Organization of county boards of canvassers. 131. Production of original statements and copies

thereof.

132, Correction of clerical errors in election district

statements.

133. Correction in state or county board of canvassers' statement.

134. Proceedings of state board of canvassers upon corrected statement.

135. Statement of canvass by county boards.

136. Decisions of county boards as to persons elected.
137. Transmission of statements of county boards to
secretary of state.

138. Organization of state board of canvassers.
139. Canvass by state board.

140. Certificates of election.

141. Record in office of secretary of state of county officers elected.

§ 130. Organization of county boards of canvassers.— The board of supervisors of each county except New York and Kings, shall be the county board of canvassers of such county. The boards of aldermen in the cities of New York and Brooklyn, respectively, shall be the county and city board of canvassers of their respective counties and cities. The members of the county board of canvassers of each county, except New York and Kings, shall meet at the office of the county clerk thereof on the Tuesday next after each election of public officers held in such county other than an election of town, city, village or district school officers held at a different time from a general election. Upon such meeting they shall choose one of their number chairman of such board. Such county clerk, or if he be absent or unable to act, the deputy county clerk of such county, shall be the secretary of such board. The secretary of the board shall thereupon administer the constitutional oath of office to the chairman of the board, who shall then administer such oath to each member and to the secretary of the board. The members of the county and city board of canvassers of the county and city of New York, and of the county of Kings and city of Brooklyn, shall meet at the place for holding their regular meetings in the cities of New

York and Brooklyn, respectively, on the Tuesday next after each election of public officers held in such county or city, respectively, or any district thereof. Upon meeting, they shall choose one of their number chairman of such board of canvassers. The clerk of such board, respectively, shall be the secretary of such board, or in his absence or inability to serve, his chief deputy shall be the secretary of the board. The secretary of the board shall thereupon administer the constitutional oath of office to the chairman of the board, who shall then administer such oath to each member and to the secretary of the board. A majority of the members of any board of canvassers shall constitute a quorum thereof. If, on the day fixed for such meeting, a majority of any such board shall not attend, the members of the board then present shall elect the chairman of the board and adjourn to some convenient hour of the next day. If such board, or a majority thereof, shall fail or neglect to meet within two days after the time fixed for organizing such board, the supreme court, or any justice thereof, or county judge within such county, may compel the members thereof by writ of mandamus to meet and organize forthwith.

§ 131. Production of original statements and copies thereof.— As soon as such board of county canvassers shall have been organized, the officer or board with which they were filed, shall deliver to such board of canvassers all the original statements of canvass and the certified copies thereof and the sealed packages of void and protested ballots. The copies of the original statements which have been delivered to members of the board or assessors shall then be delivered to the board. If any member of the county board of canvassers shall be unable to attend the first meeting of such board, he shall, at or before such meeting, cause to be delivered to the county clerk of such county all such copies of original statements delivered to him, and any original statement that may have come into his possession. If, at the first meeting of a county board of canvassers of any county, all such original statements of the result of the canvass of the votes cast at such election in all the election districts in the county shall not be produced before the board, it shall adjourn to some convenient hour of the same or the next day, and the county clerk of such county shall, by special messenger or otherwise, obtain such missing original statements, if possible, otherwise he shall procure one of the certified copies thereof in time to be produced before such board at its next meeting. At such first meeting, or as soon as an original statement of the result