The People of the State of New York ex rel. Luke H. Brooks, Relator, v. John Bush and Others, Justices of the Peace of the Town of Chateaugay, and Willard S. Alvord, Town Clerk of the Town of Chateaugay, Respondents

The People of the State of New York ex rel. Luke H. Brooks, Relator, v. John Bush and Others, Justices of the Peace of the Town of Chateaugay, and Willard S. Alvord, Town Clerk of the Town of Chateaugay, Respondents. Election— acts of justices of the peace, in permitting unauthorized persons to act, are not judicial—they are not reriewahle by certiorari. Justices of the peace, while acting in the position of inspectors of an election, are merely ministerial officers, and, although they may have allowed an assistant of the town clerk, who was not himself sworn as a clerk, to keep the tally sheet and declare the result of the canvass, and have permitted other unauthorized persons to aid, under their direction and supervision, in the distribution of tickets and in the taking and counting of votes, the conduct of the justices in permitting such irregularities is not judicial action within the ordinary-meaning of that term and cannot be reviewed by a writ of certiorari. Certiorari issued out of the Supreme Court, and attested on the 29th day of March, 1897, directed to John Bush and others, as justices of the peace of the town of Chateaugay, and Willard S. Alvord, town clerk of the town of Chateaugay, commanding them to certify and return to the office of the clerk of the county of Franklin all and singular their proceedings in conducting the town meeting in that town in March, 1897. This proceeding is instituted by the relator for the purpose of having declared void the proceedings of the annual town meeting held in the town of Chateaugay in March, 1897, at which, among other things, it was determined that no license should be issued for the sale of liquor by hotel keepers. The relator is an elector of the town and an hotel keeper. It is claimed that such irregularities occurred in the conduct of the meeting as to make its action illegal and void. The irregularities complained of were, according to the return,, substantially as follows: The town clerk, not being a rapid writer,, was permitted to have an assistant, who was not sworn as a clerk, and who, under the direction of the town clerk, performed the manual work of writing down the names of the voters and the number of the ballots cast by them and noted the challenges made and, at the.canvass, kept under the direction of the town clerk the tally sheet; and, after the canvass was made, read, at the request of William P. Oantwell, for the relator. John P. Kellas, for the respondents. [MAJORITY — Merwin, J.:] Merwin, J.: In view of the well-established general proposition that an election is not to be set aside for a mere informality or irregularity which cannot be said in any manner to have affected the result of the election (1 Dillon on Mun. Corp. [4th ed.] § 197, note 3), it is not clear that the relator, upon the case here presented, has upon the merits any ground for relief. Be that as it may, it is very clear that in this proceeding we have no right to review the conduct complained of. The justices of the peace were in the position of inspectors of election. As to such it was held in People ex rel. Stapleton v. Bell (119 N. Y. 175) that they are simply ministerial officers. If so, their acts and conduct in conducting the election cannot be reviewed by certiorari. (Matter of Many, 10 App. Div. 451; People ex rel. Van Sickle v. Austin, 20 id. 1.) In People ex rel. Trustees v. Board of Supervisors (131 N. Y. 468) it was held as follows: “ The writ of certiorari is appropriate only to review the judicial action of inferior courts or public officers or bodies exercising judicial functions. It is not available to review the action of a public officer or body which is merely legislative, executive or administrative, although it may involve the exercise of discretion.” The distribution of the tickets and the taking of the votes, the counting of the votes and the declaration of the result were not judicial acts. ¡Nor was the action or conduct of the defendants, in permitting or suffering the irregular acts complained of, judicial action within the ordinary meaning of the term. If the defendants, in the administration by them of the Election Law, were guilty of official misconduct, the remedy is not in this proceeding. The criminal law has provisions on the subject. All concurred. Writ of certiorari quashed, with fifty dollars costs and disbursements.