The opinion
It may be that a review by this court of alleged defective ballots cast in a closely contested election may consume so much time as to seriously cripple the court and in a measure prevent it form transacting its regular business. But the remedy is with the legislature and not with us. The situation affords us no excuse for overruling what I consider to be many well-considered cases, and now holding that we have no jurisdiction to hear such cases.
I cannot concur in the opinion of Judge MARTIN. I do not understand that the remedy given by the statue, of a review of the ballots by mandamus, is exclusive, for the reason that *Page 43
the right of action by quo warranto still survives. But if it should be held that the remedy is exclusive, it by no means follows that the determination of the lower court may not be reviewed by appeal. The Constitution not only gives this court the power to review the determination of the Appellate Division, but in certain specified cases makes it the duty of the court to review. It provides that "appeals may be taken as of right to said court form judgments or orders finally determining actions or special proceedings." And to the same effect are the provisions of the Code. If an appeal may be taken to the court as of right, how can the court justify itself in refusing to hear it? The order sought to be reviewed is beyond question a final order in a special proceeding in which the appeal may be taken as of right, and I believe it to be the duty of the court to entertain it and determine the questions involved. The Constitution further provides that "the legislature may further restrict the jurisdiction of the Court of Appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved." (Art. VI, § 9.) Is there any restriction of the right of appeal in this statute? I have looked for it in vain. There are statutes giving an exclusive remedy where appeals have been restricted, but in such statutes there are provisions indicating the legislative intent to restrict a review by providing that the determination of the General Term or Appellate Division shall be final.
Questions of fact may arise as to whether a ballot is marked for identification, or is torn by a voter or the inspectors of the election, or is marked otherwise than with a pencil containing black lead, which may depend upon the testimony of witnesses. In such cases a unanimous affirmance by the Appellate Division could not be reviewed by this court. Our power is limited to the review of the law, and we cannot review a reversal upon the facts. (Const. art. VI, § 9.) But there has been no reversal upon the facts in this case. The order of the Appellate Division is silent as to the grounds upon which it modified the order of the Special Term, and we must, therefore, *Page 44
assume that it was upon the law. (Code, §§ 1338, 2082, 2087.) The reversal being upon the law, we must review all questions of validity arising upon the ballots and not depending upon extrinsic evidence. Such questions are purely conclusions of law based upon the ballots, the undisputed evidence in the case.
There may be some doubt as to the conclusion reached by Judge GRAY with reference to three or four ballots. They are so near the border line that minds may well differ as to their validity. As to all of the other ballots, my views are in accord with those expressed by him in his opinion. Under the circumstances, I am inclined to yield to his views with reference to the ballots in doubt, and concur with his conclusions as to all of the ballots under review.