The opinion
Section 114 of the Election Law (Ch. 909, Laws 1896), as it now stands, provides: "If any certified original statement of the result of the canvass in an election district shall show that any of the ballots counted at an election therein were objected to as marked for identification, a writ of mandamus may, upon the application of any candidate voted for at such election in such district, within *Page 57
twenty days thereafter, issue out of the Supreme Court to the board or body of canvassers, if any, of the return of the inspectors of such election district, and otherwise to the inspectors of election making such statement requiring a recount of the votes on such ballots. If the court shall, in the proceedings upon such writ, determine that any such ballot was marked for the purpose of identification, the court shall order such ballot and the votes thereon to be excluded upon a recount of such votes. A like writ may in the same manner be issued to determine whether any ballot and the votes thereon which has been rejected by the inspectors as void, shall be counted. If in the proceedings upon such writ the court shall determine that the votes upon any such ballot rejected as void shall be counted, the court shall order such ballot and the votes thereon to be counted upon a recount of such votes. Boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings."
It is to be observed that this statute provides for the action of the Supreme Court by mandamus in two cases, and two cases only: (1) Where ballots have been counted which were objected to as being marked for identification, and (2) where votes which should have been counted have been rejected by the inspectors as void. Therefore, unless a ballot which is claimed to have been marked for identification was counted, no question is presented that can be determined in such a proceeding. On the other hand, unless a vote has been rejected by the inspectors as void, its validity cannot be inquired into. The right conferred and the proceeding authorized by this provision of the statute are new. They had no existence whatever at common law, or under the provisions of any statute of this state, until 1891, when a similar provision was adopted authorizing the Supreme Court to investigate and determine only the question whether certain protested ballots had been marked for identification. That provision was re-enacted in 1892 and made a part of the General Election Law, being section 118 of chapter 680, Laws 1892. But that law, like the one preceding it, related only to ballots marked for identification. The issues *Page 58
to be determined in a proceeding under either of those statutes were issues of fact, involving the question whether the ballot or ballots marked were marked for the purpose of identification. ( People ex rel. Hasbrouck v. Supervisors, 135 N.Y. 522 .) By the present Election Law, the power to investigate and determine whether ballots protested as marked for identification were, in fact, marked for that purpose, is conferred upon the Supreme Court, and also the power to determine whether any ballot, which has been rejected as void, should be counted.
At the threshold of the examination of this case, an important question arises as to the jurisdiction of this court, which is, whether the determination of the Supreme Court in such a proceeding is reviewable here. The only authority upon which this proceeding is based, and the only right to the relief sought, are conferred upon a candidate by section 114 of the Election Law. Anterior to the statutes, to which we have referred, a candidate had no right to thus test the title to an office, or to thus secure a recount of the votes under the direction of the Supreme Court. He might, in a proper case, assert and secure his title by an action in the nature of a quo warranto, but he possessed no right either under the statute or at common law to institute a special proceeding for that purpose. Nor until then could he procure such a recount. These statutes have conferred upon candidates a special right for which a special remedy is given, to be enforced by a special proceeding. The present statute, like the preceding one, vests in the Supreme Court alone the power to issue a writ for the determination of the matters referred to in it, and especially provides that they are to be determined by that court. No provision whatever is found in the statute authorizing any appeal to the Court of Appeals. So that the inquiry arises whether the remedy given by it is an exclusive one to be controlled by its provisions, or whether a writ issued under that statute and the proceedings upon its return fall within and are controlled by the general statutes of the state.
It is a principle which is well established by the authorities *Page 59
in England, in this state and in other commonwealths, that where a new right is given by a statute a special remedy is provided, and the forum where it may be enforced is designated, or when a new power is conferred and the means of executing it are therein granted, the right and power can be vindicated and executed in no other way than that prescribed by the statute, and a party is restricted to the remedy and forum provided. (Sutherland on Statutory Construction, § 399; Dudley v. Mayhew, 3 N.Y. 9 , 15 ; Hollister v. Hollister Bank, 2 Keyes, 245, 248 ; Rex v. Robinson, 2 Burr. 799; Plankroad Co . v. Morley, 23 N.Y. 554 ; Darlington v. Mayor, etc., 31 N.Y. 164 , 179 ; Cook v. Whipple, 55 N.Y. 163 ; People ex rel . v. Hall, 80 N.Y. 125 ; Continental Store Service Co . v. Clark, 100 N.Y. 365 , 369 ; Heiser v. Mayor, etc., 104 N.Y. 68 ; Matter of N.Y., L.E. W.R.R. Co., 110 N.Y. 374 , 379 .) In the Dudley case this court said: "It is very clear that when a party is confined to a statutory remedy, he must take it as it is conferred; and that where the enforcing tribunal is specified, the designation forms a part of the remedy, and all others are excluded." Again, in the Hollister case it is declared: "Where a statute confers a right, and also, in the same statute, prescribes an adequate means of protecting or enforcing it, the right is confined to the statutory remedy." In Rex v. Robinson, Lord MANSFIELD said: "Where a statute creates a new offense by prohibiting or making unlawful anything which was lawful before, and appoints a specific remedy against such new offense by a particular sanction and particular method of proceeding, that particular method of proceeding must be pursued and no others." In the Plankroad Co . case this rule was quoted, and it was there held that the same rule was applicable to legal liabilities of a civil nature created by statute, for the recovery of which a special remedy is given. In the Darlington case, which arose under the statute known as the Riot Act, it was said that the act gave a remedy which did not exist before, prescribed the mode of enforcing it, and the method of obtaining payment, and that the parties were confined to the statutory *Page 60
remedy, as that was the manifest intention of the legislature. The rule that where a statute confers a right and prescribes an adequate means of protecting or enforcing it, the right is confined to the statutory remedy, is also clearly recognized in the Cook and Continental Store Service Co . cases. The decision in the latter case was to the effect that when a right is conferred by law, a remedy is provided, and the forum where they may be enforced designated, a party is restricted to the remedy and forum provided. Heiser v. Mayor was a case where a statute conferred upon the owners of real estate the right to recover for injuries occasioned by the change of grade in the streets adjoining their property, and it was held that they were entitled to recover only in the manner provided by the statute, and that no right of action existed in their favor, except that specially directed therein. In Matter of N.Y., L.E. W.R.R. Co., which was a railroad crossing case, it was again held that it is a settled rule of construction that when rights are conferred by statute, and specific remedies provided therein for their protection, such remedies are exclusive and must be pursued.
The statute, as it now stands, confers upon a candidate for office a new right, which exists only by virtue of it. It provides a new remedy for the vindication of that right, and expressly designates a particular tribunal by which it may be enforced. The right secured to a candidate is to have a recount of the ballots under the circumstances mentioned in the statute, and the authority to direct such recount is conferred upon the Supreme Court alone. Here, then, a new remedy is given, a new power is conferred upon the Supreme Court, and the manner of enforcing and executing them is plainly specified in the act. It was the manifest intent of the legislature to confine the parties to such a proceeding exclusively to the remedy and forum provided. It could not have been its intent to convert the Court of Appeals into a canvassing board in every instance where ballots were objected to as marked for identification, or rejected upon the ground that they were void, and thus require it to examine all such ballots *Page 61
offered or cast at all the general, district, county, town or municipal elections held in the state. To hold that such was the intent or effect of the statute would frustrate its clear purpose, as such an appeal would postpone the ultimate determination of the rights of the parties until the term of office practically expired. It would also cast upon this court a flood of litigation which would substantially bar the determination of other cases where important interests are involved, and thus result in a substantial denial of justice to other litigants. The obvious purpose of the legislature was to provide a special, summary and speedy method of determining the questions referred to in that section, and to secure a prompt determination of the rights of the opposing candidates. In the language of Judge EARL, it provided "a speedy and summary proceeding" for their determination. If its intent was to confer upon parties the right of appeal through all the courts of the state, including the court of last resort, it was formed with full knowledge of the fact that it was improbable that such cases would reach a final determination until the term of the office involved had expired. The existence of such a right would result in embarrassing and, to an extent, in destroying the efficiency of the judiciary, and would render this court impotent to perform its usual and necessary functions, with no corresponding benefit. No such intention should be attributed to the legislature. It may be that the language employed in section one hundred and fourteen would justify an appeal to the Appellate Division, which is a branch of the Supreme Court. But that the Legislature intended to confer a right to appeal to this court we do not believe. No such intent is expressed, and it cannot be fairly implied from the language employed. Consequently, so far as the intention of the legislature is concerned, we are of the opinion that it did not intend by that statute to confer any right upon the parties in such a proceeding to appeal to this court. If it had intended to confer that right, it would have so declared in plain and unmistakable terms.
The right of appeal is not a natural or inherent one. That *Page 62
right, so far as it has hitherto existed in the jurisprudence of this state, is a statutory one and does not exist at common law. It is a remedy which the legislature may in its discretion grant or take away, and it may prescribe in what cases, under what circumstances and from and to what courts appeals may be taken, except as prohibited by the organic law, and it is for the appellate tribunal to determine the nature and extent of its jurisdiction and whether the right of appeal exists. (Elliott's Appellate Procedure, § 354, note 1, and § 23; People ex rel. Grissler v. Fowler, 55 N.Y. 675 ; Butterfield v. Rudde, 58 N.Y. 489 ; Ryan v. Waule, 63 N.Y. 57 ; Hewlett v. Elmer, 103 N.Y. 156 , 158 ; People v. Trezza, 128 N.Y. 529 ; Szuchy
v. Hillside Coal Iron Co., 150 N.Y. 219 , 224 ; People ex rel . v. Cullen, 151 N.Y. 54 ; People v. Mayhew, 151 N.Y. 610 ; Sullivan v. Haug [ 82 Mich. 548 ], 10 L.R.A. 263 .)
But it is said that section one hundred and ninety of the Code of Civil Procedure confers jurisdiction upon the Court of Appeals in actions and proceedings to review the actual determination of the Appellate Division of the Supreme Court in the cases therein mentioned, and that under subdivision one of that section appeals may be taken to this court as of right from judgments or orders finally determining actions or special proceedings. It must be admitted that if the general provisions of the Code are applicable to a proceeding of this character, they are sufficiently broad to include the appeal in this case. But as only questions of law could then be reviewed, at most but a few of the questions involved in such a proceeding could be actually determined upon such an appeal.
It is also urged that as there were no words in the statute restricting the right of appeal to this court the right exists, and the cases of Matter of Ryers ( 72 N.Y. 1 , 4 ), Matter of Brady ( 69 N.Y. 215 , 219 , 220 ), Matter of P.P. C.I.R.R. Co . ( 85 N.Y. 497 , 498 ), Matter of Swan ( 97 N.Y. 492 , 493 ) and Matter of De Camp ( 77 Hun, 480 ) are relied upon as sustaining that proposition. It is to be observed that most of those cases arose under statutes which it was claimed *Page 63
made the determination of the courts below final and conclusive, and the question involved was whether, in view of the language employed, an appeal to this court was forbidden. It is true that in some of the cases general language is employed which is sufficiently broad to cover the case at bar. But it is manifest that in the cases cited the principle, that where a new right or power is conferred and the means of executing it are granted by a statute, the parties are restricted to the remedy and forum provided, was not discussed or considered. It is said that if this principle had been applied to those cases the result would have been different. That may be true. But if the question was not considered, those decisions are not to be regarded as binding authorities upon the question under consideration. There are other cases where this court has considered questions which, under this principle, it had no jurisdiction to determine, still, as in none of them has this question been presented or discussed, they cannot be regarded as authorities bearing upon it.
The real and controlling consideration upon this branch of the case is whether the remedy given by section one hundred and fourteen of the Election Law is exclusive. If it is, it follows that, as it gives no right of appeal to this court, none exists. As the right to institute a proceeding to control the action of election officers in the cases mentioned is given by a special statute, and did not previously exist at common law or otherwise, the statute must be strictly construed and the parties held to have the remedy expressly given by the language employed, or necessarily implied from it, and none other. (Brown on Jurisdiction, § 14.) When this statute is thus construed, it becomes evident that no right to appeal to this court exists, and that the procedure provided for by that act for the enforcement of the rights conferred by it should control and be had before the forum mentioned therein, exclusively of any other.
We are of the opinion that, for the reasons already given, the court has no jurisdiction to review the questions presented upon this appeal, and that the appeal should be dismissed, with costs. *Page 64
BARTLETT and VANN, JJ., were in favor of dismissing the appeal upon the ground stated by MARTIN, J., in his opinion. As, however, the court decided that the order in question was appealable, and their votes were essential to a decision upon the merits, they deemed it their duty to take part in the final vote, and, after examining all the ballots, they concurred in the opinion of GRAY, J., except as to the question of appealability.
Order modified so as to provide for a recount in accordance with the views set forth in the opinion of GRAY, J., and, as modified, affirmed, without costs to either party.
Concur, BARTLETT and VANN, JJ., who file memorandum, and HAIGHT, J., who files opinion; PARKER, Ch. J., concurs with O'BRIEN, J., who reads opinion for modification; MARTIN, J., reads opinion dissenting as to appealability of order, and does not vote on the merits of the case.