Opinion
November Term, 1897.
William P. Cantwell, for the relator.
John P. Kellas, for the respondents.
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.