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any person who induces or attempts to induce any person so to do, is guilty of a misdemeanor. The fact that such statement is untrue shall be prima facie proof that it is false and intended to mislead.

Any person who shall make, sign, file or cause to be filed, certify or attest any false application for registration as required by sections one hundred and fifty-eight and one hundred and fifty-nine of this chapter, or any person who shall alter, mutilate, destroy or remove any such application from the place of registration, shall be guilty of a felony and shall be punished upon conviction thereof by imprisonment in a state prison for not less than two years nor more than five years, unless otherwise provided by law.

Derivation: Election Law, § 34, pt. of subd. 6, as amended by L. 1899, ch. 630, § 8; L. 1901, ch. 544, § 1; also § 34, subd. 9; also § 35, pt. of subd. 2, as amended by L. 1897, ch. 379, § 9; L. 1899, ch. 630, § 10; L. 1901, ch. 95, § 10; L. 1905, ch. 643, § 8.

Amended by L. 1913, chs. 587, 820; L. 1918, ch. 323, in effect Apr. 24, 1918.

ARTICLE 7.

BOARDS OF ELECTIONS.

Section 190. Boards of elections established.

191. Appointment, term and qualifications of commissioners of elections.

192. Organization of board; rules and reports.

193. Salaries of commissioners of elections.

194. Recommendations for appointment of commissioners of elections. 195. Filling vacancies in board.

196. Bi-partisan character of board.

197. Appointment of employees.

198. General office and branches.

199. Duty of police to aid board of elections.

200. Expenses of board of elections.

201. Disposition of registers and unused ballots.

202. Custodian of primary records.

203. Official seal.

204. Filing statement of canvass, tally sheets and poll-books.
205. Notices.

206. Transfer of records; devolution and continuance of powers.

207. Office hours, rules and regulations of board of elections.

208. All records to be public; records of transactions of the board of elections.

209. Board and members may issue subpoenas.

209-a. Article not applicable to Oneida, Broome and Westchester counties; powers and duties of county clerks in such counties defined.

§ 190. Boards of elections established.

There shall be a board of elections in every city of the first class in this state which does, or shall contain within its boundaries more than one county, to consist of four persons. There shall be a board of elections in each of the other counties of the state, but in counties having a population of less than one hundred and twenty thousand inhabitants such board shall consist of two persons. In other counties of the state such board shall consist of two or four members as the board of supervisors of the county may by resolution determine. In every such other county where four commissioners of election have been appointed and the number of said commissioners is reduced to two, the board of supervisors shall within sixty days after this amendment takes effect reduce the number of commissioners to two by designating the two who are to continue; and from the time of such designation the offices of the others shall be deemed abolished. Except in the city of New York the salaries of such commissioners and their expenditures for clerk hire shall be fixed by the board of supervisors of each county, but shall not exceed the following amounts: In each county having a population of less than ninety thousand and which does not contain within its boundaries at least three cities of the third class the salary of a commissioner shall not exceed fifteen hundred dollars, and the expenditure for clerk hire, including stenographer, each year, shall not exceed two thousand dollars. In each county having a population of less than ninety thousand and containing within its boundaries at least three cities of the third class in each county having a population of ninety thousand and less than one hundred and twenty thousand the salary of a commissioner shall not exceed twenty-five hundred dollars, and the expenditure for clerk hire, including stenographer, each year, shall not exceed thirty-five hundred dollars each year. In each county having a population of one hundred and twenty thousand and less than five hundred thousand the salary of a commissioner shall not exceed three thousand dollars, and the expenditure for clerk hire, including stenographer each year, shall not exceed five thousand dollars. In each county having a population of five hundred thousand and less than a million the salary of a commissioner shall not exceed three thousand dollars. The population of the various counties of the state referred to in this section shall be fixed and determined according to the latest preceding federal census, or state enumeration. Not more than two of such com

missioners, if the board of elections consist of four members, and not more than one of such commissioners if said board consist of two members, shall belong to the same political party or be of the same political opinion on state or national politics. The persons composing such boards of elections shall be designated commissioners of elections." Each of the said boards of/ elections shall be and is hereby charged with the duty of executing the laws relating to all elections held within their respective cities or counties, except as otherwise provided by law.

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Derivation: Election Law, § 11, subd. 2, ¶ a, as added by L. 1901, ch. 95, § 5.

Amended by L. 1911, chs. 649 and 740; L. 1912, ch. 406; *L. 1913, chs. 800 and 820; L. 1919, ch. 369, in effect May 5, 1919.

The purpose of sections 190-196 of the Election Law is to provide for a bi-partisan election board in New York city, and the mayor is given full authority to appoint the board. Matter of Kane v. Gaynor (1911), 144 App. Div. 196, aff'd 202 N. Y. 615, on opinion of Burr, J., below.

While the powers and duties of a board of elections are ministerial only, jurisdictional defects are not waived by the receipt and filing of a certificate of independent nomination; and if said certificate be not substantially in the form and executed and authenticated in the manner required by law, it is invalid and remains invalid, although it may have been received and filed by the board. Matter of Murphy (1919), 189 App. Div. 135, 178 N. Y. Supp. 236.

The duties of the board of elections with respect to the receiving and filing of certificates of independent nomination are now wholly ministerial. The duty of executing the election laws, however, is expressly enjoined upon said board by § 190, as amended by L. of 1919, ch. 369, and it is its duty to refrain from acting upon papers purporting to be certificates of nomination, which do not appear on the face thereof to be executed in the form and manner required by law, but it has no judicial power to investigate or decide with respect to the validity of such a certificate depending on matters dehors the record. The former rule that all certificates of nomination to which no objection is filed are to be deemed valid, no longer obtains. Matter of McGrath (1919), 189 App. Div. 140, 178 N. Y. Supp. 231.

The duty of counting the number of signers of an independent certificate of nomination who have registered devolves upon the board of elections under 190, as amended by L. 1919, ch. 369. This is a ministerial duty and is subject to judicial review under § 125, as amended by L. 1914, ch. 244. Matter of Murphy (1919), 189 App. Div. 135, 178 N. Y. Supp. 236.

Upon an appeal by a candidate from an order denying his application to have his name printed on the official ballot, no objection having been filed to his certificate of independent nomination, no objection depending upon evidence dehors the record is available, but said candidate is not entitled, regardless of the validity of the certificate on the face of the records, and of whether the requisite number of the nominators have registered, to have his name printed on the official ballot. Matter of Murphy (1919), 189 App. Div. 135, 178 N. Y. Supp. 236.

Upon an application by a candidate for an order directing the board of elections to cause his name to be printed on the official ballot, held that for the reasons stated in the opinion of Matter of McGrath (189 App. Div. 140), the applicant was not entitled to the order without showing that the certificate of nomination was in due form and duly executed, and on said ground an order denying his application might be affirmed without prejudice

* Reducing Number of Commissioners.-L. 1912, ch. 406, section 4, in effect April 16, 1912, although not amending any section of the Election Law, provides as follows: "In any county in which the number of the commissioners constituting the board of elections is reduced by the provisions of this act, the board of supervisors shall, within thirty days after this act takes effect, designate the two members of such board of opposite political faith who shall retire therefrom. Upon the adoption of a resolution to that effect, the terms of office of such retiring members shall cease and determine and the remaining members shall thereafter constitute, until the expiration of their terms, the board of elections of such county."

to another application on sufficient papers; but in view of the limited time before it becomes necessary to have the ballots printed, said application should not be scrutinized technically and the court should have entertained it and summarily decided whether the certificate was valid and sufficient on its face and on matters of record. Matter of Murphy (1919), 189 App. Div. 135, 178 N. Y. Supp. 236.

The authority of the board of elections with respect to certificates of independent nomination is wholly ministerial and it has no power to go outside of, beyond or behind the records, and is not authorized to pass upon any question relating to the forgery of the name of any nominator, notary or subscribing witness; and where no objection to this certificate is filed, the court is confined to matters of record. Matter of Murphy (1919), 189 App. Div. 135, 178 N. Y. Supp. 236.

A board of supervisors has no power under subd. 5 of § 12 of the County Law to increase the compensation of commissioners of election beyond the limitation fixed by this section of the Election Law. Opinion of Attorney General (1919), 19 State Dept. Rep. 317.

Jurisdiction of a board of elections held limited to the examination of the face of a certificate of independent nomination and to counting the names of the nominators who registered, and held further that in so far as a letter of said board indicates that it went beyond said jurisdiction, its action was null and void. Matter of McGrath (1919), 189 App. Div. 140, 178 N. Y. Supp. 231.

Salary of Clerk.-Under § 12, subd. 5 of the County Law, as amended by L. 1914, ch. 358, the board of supervisors has power to fix the salary of the chief clerk of the board of elections. People ex rel. Simpson v. Snyder (1916), 173 App. Div. 171, 158 N. Y. Supp. 937.

§ 191. Appointment, term and qualifications of commissioners of elections. All commissioners of elections shall be appointed by the board of supervisors of the county in which such board of elections is located and in the city of New York by the board of aldermen of such city. The supervisors of each county and the members of the board of aldermen of the city of New York shall appoint the commissioners of elections for their respective counties and the city of New York. Such appointment shall be evidenced by the supervisors of each county or the board of aldermen of the city of New York making such appointments, executing a certificate substantially as follows: "We, the undersigned, comprising the supervisors of county,

(the members of the board of aldermen of the city of New York) do hereby, pursuant to the election law, appoint residing at

a commissioner of elections for said county.

"In witness whereof we have hereunto subscribed our names and the towns or wards (aldermanic districts) we represent, this day of

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and shall acknowledge said certificate. Said certificate shall thereupon be filed in the office of the county clerk of said county and said county clerk shall immediately upon such filing notify the secretary of state of such appointments. All such appointments shall be for the full term of two years, beginning at twelve o'clock noon of January first in each odd numbered year. Each of the said commissioners of elections shall be at the time of his appointment a resident and an elector of the political subdivision for which he is appointed. A commissioner of elections may, while holding such office, hold one of the following offices: Notary public, commissioner of deeds, police justice of a village, trustee or officer of a common or union school district outside of a city, justice of the peace of a town, and any other office filled by election or appointment within or for a town or village, or district or subdivision of either, except supervisor, town clerk, inspector of election, poll clerk or ballot clerk. Such commissioner shall not hold, while he is commissioner, any other office, except as above provided; nor shall he be a candidate, while he is commissioner, for any elective office which he would not be entitled to hold under the provisions of this section, nor after he has ceased, by resignation or otherwise, to be commissioner, if the election shall occur within fifty days therefrom, and any votes cast for any person

for any such office who shall have been a commissioner of elections within fifty days of the election at which such votes were cast shall be void and shall not be counted, except that such commissioner may be a candidate for the office of supervisor or town clerk while he is a commissioner, and at any time thereafter, subject to the ensuing provisions of this section. Any votes cast for a person for either of such offices who shall have been a commissioner of elections, and who shall have resigned from or otherwise ceased to hold the office of commissioner at least fifteen days before the election at which such votes were cast shall be valid and shall be counted.

A commissioner of elections may be removed from office by the governor for cause in the same manner as a sheriff. Any vacancy in the office of commissioner of elections shall be filled by the supervisors of such county or in the city of New York by the members of the board of aldermen within five days after the filing of the certificate provided for in section one hundred and ninety-five of this act, and the person appointed to fill such vacancy shall hold office during the remainder of the term of the commissioner in whose place he was appointed.

Derivation: Election Law, § 11, subd. 2, pt. of paragraph b, as added by L. 1901, ch. 95, § 5.

Amended by L. 1911, ch. 649, and L. 1913, ch. 820, in effect Dec. 17, 1913. Cross-reference. As to appointment, qualifications, etc., of election officers in general, see Election Law, § 302.

Action of board of supervisors administrative, not judicial.-Where two parties, each claiming to be chairman of a Republican county committee, certify a candidate for appointment as commissioner of elections, pursuant to section 194, the board of supervisors in passing upon both designations, which are regular in form, and in appointing one of said candidates, acts in a purely administrative and not judicial capacity, and, hence, certiorari to which the person holding the office has not been made a party is not a proper remedy to review the appointment. If the appointee is to be ousted from office, it must be through a direct action to which he is a party. The title to a public office should not be questioned collaterally and can only be determined in an action in the nature of quo warranto, which remedy is exclusive. It cannot be assumed that the Attorney-General will refuse to bring an action of quo warranto thereby leaving the petitioners without a remedy. A writ of certiorari will only lie for the review of determinations of judicial tribunals and of other tribunals when engaged in the exercise of powers of a judicial nature. Matter of Carp (1917), 179 App. Div. 387, 166 N. Y. Supp. 243.

Election commissioner; illegal appointment.- Where a person was certified by the county committee of his party for the office of election commissioner, but the board of supervisors disregarding the certificate appointed another person to the office, the person certified, not having title to the office, may not maintain an action as relator to oust the occupant. Until a person is legally appointed and the occupant refuses to surrender the office the Attorney-General in the exercise of his discretion should not bring an action to oust the occupant. Rept. of Atty.-Gen. (1913), Vol. 2, p. 616.

Vacancies- Where the present residence or whereabouts of a commissioner of elections is unknown and he has for a long time been absent from the county for which he was appointed and he does not attempt to exercise any of the powers of his office, a vacancy exists which may be filled by the appointing power without recourse to any action at law to determine his status. Rept. of Atty.-Gen. (1914), Vol. 2, p. 131.

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