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In the Matter of the Correction and Completion of the Registry of Electors in the Fourth Election District of the Third Ward of the City of Albany, N. Y., for the General Election to Be Held on the 7th Day of November, 1933 John Clare and Another, as Members of the Board of Inspectors of Election, etc., Appellants Samuel Vener and Another, as Members of the Board of Inspectors of Election, etc., Respondents In the Matter of the Correction and Completion of the Registry of Electors in the First Election District of the Fourth Ward of the City of Albany, N. Y., for the General Election to Be Held on the 7th Day of November, 1933 John Shaefer and Another, as Members of the Board of Inspectors of Election, etc., Appellants Fred Bernau and Another, as Members of the Board of Inspectors of Election, etc., Respondents In the Matter of the Correction and Completion of the Registry of Election in the Fourth Election District of the Fifth Ward of the City of Albany, New York, for the General Election to Be Held on the 7th Day of November, 1933 James Perrine and Another, as Members of the Board of Inspectors of Election, etc., Appellants Joseph Piombino and Another, as Members of the Board of Inspectors of Election, etc., Respondents In the Matter of the Books of Registry of the First Election District of the Fourteenth Ward in the City of Albany, N. Y., for the Election to Be Held November 7th, 1933 Elizabeth Hanifan and Another, as Members of the Board of Inspectors of Election, etc., Appellants William L. Wagner and Another, as Members of the Board of Inspectors of Election, etc., and Another, Respondents In the Matter of the Correction and Completion of the Registry of Electors in the Fourth Election District of the Fourteenth Ward of the City of Albany, N. Y., for the General Election to Be Held on the 7th Day of November, 1933 Harold Conroy and Another, as Members of the Board of Inspectors of Election, etc.
Rhodes, J.
It is sought by these proceedings to strike from the registration books the names of certain persons without notice to them.
The reason advanced for such requested relief is that such names have been entered on the books contrary to law. The record does not set forth facts showing that said persons do not possess the required qualifications to entitle them to be registered and to vote. The petition simply alleges that said persons were not entitled to be registered; that upon applying for registration they were challenged; that thereupon the statutory procedure was not followed; that the applicant in each instance “ failed to satisfy a majority of the said board of inspectors of his right so to be registered,” but that two of the board unlawfully entered the names on the registration books.
Section 169 of the Election Law, in case of a challenge of an applicant for registration, requires that a member of the board, after administering the oath, shall enter the answers of the applicant to specified questions on blanks provided, which affidavit shall then be signed by the applicant. Subdivision 3 then provides that “ If the applicant shall by his answers, satisfy a majority of the board * * * of his right to be registered,” the applicant shall be registered; otherwise not, except by order of a court or judge.
It is not alleged that the applicants failed to satisfy a majority of the board by the answers to the questions in the affidavits. It is simply alleged that the applicants failed to satisfy a majority of the board.
It seems to me this is the crux of the matter.
Notwithstanding the changes in the law since the case of People ex rel. Stapleton v. Bell (
119 N. Y. 175), I think the members of the board remain simply ministerial officers. As pointed out in the above case, if the inspectors may pass judicially on the right of an applicant, “ that would permit of an elector’s rights being adjudged away and himself disfranchised, and on only such evidence as the statute prescribes.” The court quoted with approval from People ex rel. Smith v. Pease (
30 Barb. 588): “ They cannot summon witnesses or impanel a jury or give the parties interested a hearing.
[138] They can examine the proposed elector upon his oath, and there their power and means of judicial investigation cease.” I appreciate that in the above cited cases the question referred to voting and not to registration, but the principles therein enunciated seem controlling.
We are confronted with a situation where the proceedings of the board are alleged to be irregular and illegal. This may be granted; nevertheless, these facts should not betray us into attempted assumption of authority, not conferred by the Legislature upon us, and not inherent in our office.
The facts remain that the names of the registrants in question appear on the books; it does not appear that they are not qualified voters; the law provides a method of removing such names if they are improperly registered, such method requiring notice to the board and the registrant. (See Election Law, § 331.)
I am unable to find any authority for the order appealed from, and, therefore, recommend that it be reversed upon the law and the facts, and that the application be denied.
McNambe, Bliss and Heffernan, JJ,, concur; Hill, P. J., dissents, with a memorandum, written concerning the-fourth election district of the fifth ward, but applicable to all, and votes to affirm.
