Summary
In People ex rel. Van Sickle v. Austin (20 App. Div. 1) the Appellate Division in the second department held that the function of an election board of a town in receiving votes and announcing the result is not judicial and cannot, therefore, be reviewed by the writ of certiorari.
Summary of this case from Matter of LeverantOpinion
July Term, 1897.
Wilton Bennet, for the relator.
T.S. Hulse, for the respondents.
The charge made by the petition of the relator is that the annual town meeting, held in the town of Minisink, was illegal in its result announced by the election board, because the polls were not open during the requisite time, in that the polls were not opened at sunrise and kept continuously open until sunset. And reference is made to the statute, which provides that: "Town meetings shall be kept open for the purposes of voting in the daytime only, between the rising and setting of the sun." (Laws of 1890, chap. 569, § 29.) It appears that the polls were opened at nine o'clock in the forenoon and continued open from that time until sunset, except one hour, from twelve o'clock noon until one o'clock P.M. Unlike the statutory direction applicable to general elections, the statute in question does not, in express terms, provide the hour or time the polls shall be opened, or that "there shall be no adjournment or intermission until the polls are closed." (Laws of 1896, chap. 909, § 3.) The language of the provision of the present statute as to the time that town meetings shall be kept open for purposes of voting, is substantially no different than it has been for upwards of eighty years. (2 R.L. 127; 1 R.S. 342, § 16.) And it never has been so construed as to require that the polls of town meetings be opened at sunrise or continuously kept open until sunset, as contended by the learned counsel for the relator. But the contrary has been held by the courts. ( Goodel v. Baker, 8 Cow. 286; The People ex rel. Simonson v. Martin, 5 N.Y. 22.) This view of the interpretation of the statute disposes of the question of legality of the town meeting adversely to the contention of the relator.
There is a further reason why the writ cannot be supported, and that is in the fact that a certiorari is available only to review a determination judicial in character. The functions of the election board of a town in receiving votes and announcing the result are not judicial. In doing that, they do not necessarily have any discretion to exercise or any determination to make. They receive the votes, count them, and return the results which the figures produce. There is no allegation in the petition of any judicial action of the defendants, nor does anything of that character appear in their return. It cannot, therefore, be assumed that any acts performed by them, as such board, were other than such as may be denominated ministerial and administrative. And, therefore, they are not the subject of review by the writ issued herein. (Code Civ. Proc. § 2120; The People ex rel. Corwin v. Walter, 68 N.Y. 403; The People ex rel. Second Ave. R.R. Co. v. Board Comrs., etc., 97 id. 37; The People ex rel. Trustees, etc., v. Board of Supervisors, 131 id. 468; In re Many, 10 App. Div. 451.)
The writ of certiorari should be quashed.
All concurred.
Writ of certiorari quashed, with ten dollars costs and disbursements.