on appearing at the polls, have a right as inspectors de jure to take charge of the election and make the returns. People v. Cook (1853), 8 N. Y. 67, aff'g 14 Barb. 259.

An omission by the inspectors of election to comply with such statutory requirements as are directory and not jurisdictional does not per se invalidate the votes cast in the district though the inspectors might be punished for their omission by indictment. People v. Cook (1853), 8 N. Y. 67, aff'g 14 Barb. 259.

Where the oath was irregularly administered to the inspectors of election who were, however, ignorant of the fact, the oath was held valid and the election not vitiated. People v. Cook (1853), 8 N. Y. 67, aff'g 14 Barb. 259. The county canvassers have no right to reject the certificate of a board of inspectors regular on its face and presented to them in time. People v. Cook (1853), 8 N. Y. 67, aff'g 14 Barb. 259.

Division of election officers between political parties.- The provision of this section, that inspectors in election districts shall be equally divided between the two political parties which at the general election next preceding that for which such officers are to serve cast the highest and the next highest number of votes refers to the highest and next highest number of votes in the State. Matter of Knollin (1908), 59 Misc. 373, 112 N. Y. Supp. 332, aff'd 128 App. Div. 908, 196 N. Y. 526.

Acts of election officers not reviewable by certiorari.- Inspectors of elections are simply ministerial officers, their acts and conduct cannot be reviewed by certiorari. People ex rel. Brooks v. Bush (1897), 22 App. Div. 363, 48 N. Y. Supp. 13, and cases there cited. See also People ex rel. Stapleton v. Bell (1890), 119 N. Y. 175.

Opinions of attorney-general as to election officers.-An elector, resident of a city, who is otherwise qualified, may serve as an inspector, poll clerk or ballot clerk in a district of the city other than that in which he resides. Report of Atty.-Gen. (1896), 229.

Ballot clerks and poll clerks are election officers. Report of Atty.-Gen. (1896), 230.

Candidates for office cannot serve as election officers. Report of Atty.-Gen. (1901), 296, (1903), 463, (1905), 533.

This section does not apply to a person who is employed by a public officer in a private capacity, clerk in store, coachman, gardener, etc. Report of Atty.-Gen. (1896), 221.

Inspectors, employees of public officer ineligible. Report of Atty-Gen. (1899), 323.

An inspector of election in a town or village may accept the office of village clerk. Report of Atty.-Gen. (1898), 261.

A deputy sheriff is a public officer within the meaning of this section. Report of Atty.-Gen. (1897), 246.

A postmaster is a public officer. Report of Atty.-Gen. (1897), 247.

This provision extends to persons holding office under the laws of the United States, as postmaster. It is not retroactive. Report of Atty.-Gen. (1896), 226.

Poll clerks in towns hold office for two years. Report of Atty.-Gen. (1902),

10.

An irregularity in the appointment of inspectors will not invalidate the election at which they officiate. Report of Atty.-Gen. (1895), 253.

A person appointed to the office of inspector of election, who is later chosen to and serves in the office of village treasurer, may perform the duties of inspector of election while holding the other office. Report of Atty.-Gen. (1911), vol. 2, p. 451.

§ 302-a. Powers and duties of canvassing inspectors limited, in a city of over one million inhabitants.

The powers and duties of the additional inspectors, designated as canvassing inspectors, in a city of over one million inhabitants are those prescribed in sections three hundred and two and three hundred and sixty-six-a. Inspectors to conduct the registration of electors or to constitute a board of primary inspectors shall not include such canvassing inspectors; and any provision of this chapter conferring a power or imposing a duty on the inspectors of elec- tion or any of them or the board of inspectors of any election district, except the powers and duties prescribed by the sections referred to above, shall be deemed to mean and refer to inspectors of election and boards of election other than such additional canvassing inspectors. A person appointed as a canvassing inspector, however, shall be eligible to fill a vacancy in the regular board of inspectors upon a day of registration or in the board of primary inspectors, occurring on a day of registration or primary election. The provisions of section seventy of this chapter, applying the procedure at a general election to official primaries, shall not be deemed to mean that a separate or additional board of canvassers shall take the place of the primary inspectors who serve during the taking of the vote. Such primary inspectors shall have charge of not only the taking but the canvass and return of the vote. Added by L. 1918, ch. 322, in effect Apr. 24, 1918.

§ 303. Appointment of election officers in cities.

each

The board of elections of the city of New York and the mayor of each other city shall, on or before the first day of September of year, select and appoint election officers for each election district therein, and may fill any vacancy which may occur before the opening of the polls on election day.

Each political party entitled to representation in any board of election officers may, not later than the first day of July in each year, file with such board or mayor an original list of persons, mem'bers of such party duly qualified to serve as election officers. A supplemental list of persons may also be filed containing not more than ten names for each office. Additional supplemental lists for any election district may be filed at any time before the appointments for such districts are made and certified by such board or mayor or when a vacancy shall exist in the original list by reason of the disqualification, resignation, declination, or withdrawal of the name by the person or persons submitting the same, of any person on such list, and all appointments shall be made from the original list if those named therein are found qualified; if not so qualified, then from a supplemental list so filed. If within ten days after notice in writing by the board or mayor to the chairman of the committee or other person by whom the list is filed or authenticated, such chairman or other person shall neglect to file an additional list, the board or mayor may appoint qualified persons, members of the party in default, to act as election officers.

Derivation: Election Law, pt. of § 12, as amended by L. 1897, ch. 379, § 5; L. 1898, ch. 675, § 1; L. 1899, ch. 630, § 2; L. 1901, ch. 95, § 6; L. 1904, ch. 70, § 1.

Cross-references.- See note to preceding section.

Election officers must be selected from state parties.- No local faction or organization is in and of a party and entitled to representation in the election officers, unless it is recognized by and thus actually in and of the state party organization. People v. Gleason (1896), 18 Misc. 511, 76 N. Y. St. Rep. 1084, 42 N. Y. Supp. 1084.

The choosing of election officers from an irregular local organization in disregard of lists filed and authenticated by the regular local organization is a violation of the Election Law. People v. Gleason (1896), 18 Misc. 511; 76 N. Y. St. Rep. 1084, 42 N. Y. Supp. 1084.

Selection from two dominant parties.- Only the two dominant political parties must be taken into consideration in choosing election boards, without regard to subordinate factions. People ex rel. Van Wyck v. Wheeler (1879), 18 Hun 540.

Failure to appoint inspectors.-The failure to appoint inspectors within the time prescribed by law will not render subsequent appointments invalid in the absence of any statutory prohibition to that effect. People ex rel. McMackin v. Board of Police (1887), 46 Hun 296, aff'd 107 N. Y. 235.

Failure of officers to take oath.-An election is not vitiated if inspectors or clerks fail to take oath, though such failure may be punished by indictment. People v. Cook (1853), 8 N. Y. 84.

Appointment of election officers in New York county.- The power to select election officers in the county of New York rests in the county committee of the party, whose action is to be authenticated by the chairman of its executive committee; and where the power is so exercised and authenticated, the court will not consider a claim that a recommendation of a committee of an assembly district to the county committee was disregarded, although the recommendations of committees of other assembly districts were adopted. Sheehan v. McMahon (1899), 44 App. Div. 63, 60 N. Y. Supp. 452, aff'g 28 Misc. 733, 59 N. Y. Supp. 969.

See also People ex rel. Hayes v. MacLean (1890), 25 Abb. N. C. 466, 12 N. Y. Supp. 521; People ex rel. Smith v. Hasbrouck (1878), 54 How. Pr. 418.

§ 304. Authentication of party lists.

In the city of New York such lists shall be authenticated and filed by the chairman of the county committee of the party in the respective counties within such city; in other cities, by the chairman, or secretary of the general city committee of such party, if there be such a committee, or if not, then by the chairman or secretary of the general county committee of such party, if there be such a committee, or if not, then by the corresponding officer of any committee performing the usual functions of a city or county committee; provided, however, that if in any city more than one such list be submitted in the name or on behalf of the same political party, only that list can be accepted which is authenticated by the proper officer or officers of the faction or section of such party, which was recognized as regular by the last preceding state convention of such party; or, where no such convention has been held within the year, by the proper officer of the faction or section of said party which at the time of the filing of said list is recognized as regular by the state committee of such party which was organized by or pursuant to the direction of the last preceding state convention of such party.

Derivation: Election Law, pt. of § 12, as amended by L. 1897, ch. 379, § 5; L. 1898, ch. 675, § 1; L. 1899, ch. 630, § 2; L. 1901, ch. 95, § 6; L. 1904, ch. 70, § 1. Amended by L. 1915, ch. 678, in effect May 22, 1915.

Construction of section. This section must be construed in the light of section 9 of the Primary Election Law (now Election Law, § 64), providing that each county or city committee and the officers thereof shall have all the power and authority, and shall perform all the duties in respect to the nominations of officials to serve at general elections conferred upon the general committee, the county committee, the State committee and the exec

tive committee or officers therof given to any party in the said city or county by this section. People ex rel. McCarran v. Dooling (1908), 128 App. Div. 1, 112 N. Y. Supp. 71, rev'g 60 Misc. 132, 112 N. Y. Supp. 67, aff'd 193 N. Y. 604.

Although section 12 (now § 304) of the Election Law as originally enacted in 1896 contained a proviso that, if more than one list of election officers be submitted in the name of the same political party, only that list can be accepted which is authenticated by the proper officers of the faction which was organized as regular by the last preceding state convention of such party, and although said proviso was permitted to remain in the subsequent amendments to such section, nevertheless, on the enactment of the Primary Law in 1898, which expressly repealed all acts or parts of acts inconsistent therewith, the said proviso was repealed as otherwise the Primary Law would have been rendered nugatory. People ex rel. McCarran v. Dooling (1908), 128 App. Div. 1, 112 N. Y. Supp. 71, rev'g 60 Misc. 132, 112 N. Y. Supp. 67, aff'd 193 N. Y. 604.

A "faction or section" of a political party cannot file a list of election officers merely because it has been recognized as regular by the state convention, if in fact the list was not filed by the chairman of any executive committee of a county committee constituted or attempted to be constituted by election at the primary election on the annual primary day. People ex rel. McCarran v. Dooling (1908), 128 App. Div. 1, 112 N. Y. Supp. 71, rev'g 60 Misc. 132, 112 N. Y. Supp. 67, aff'd 193 N. Y. 604.

The recognition of a faction as regular by the state convention does not ipso facto absolve that body from compliance with the Primary Law in constituting its committees. A faction stamped as regular has no prerogative above the law and must be regular in its observation of the law as well as in its recognition by the state convention. People ex rel. McCarran v. Dooling (1908), 128 App. Div. 1, 112 N. Y. Supp. 71, rev'g 60 Misc. 132, 112 N. Y. Supp. 67, aff'd 193 N. Y. 604.

Where an alleged committee of a faction of a political party was not voted for and made no contest for election as county committeeman at the previous primaries, no "faction, group or section" within the meaning of the Election Law is created or exists for the purpose of presenting the matter to the state convention to give it jurisdiction. People ex rel. McCarran v. Dooling (1908), 128 App. Div. 1, 112 N. Y. Supp. 71, rev'g 60 Misc. 132, 112 N. Y. Supp. 67, aff'd 193 N. Y. 604.

Selection of election officers in New York county.- The power to select election officers in the county of New York rests in the county committee of the party, whose action is to be authenticated by the chairman of its executive committee; and where the power is so exercised and authenticated, the court will not consider a claim that a recommendation of a committee of an assembly district, to the county committee, was disregarded, although the recommendations of committees of other assembly districts were adopted. Matter of Sheehan v. McMahon (1899), 44 App. Div. 63, 94 N. Y. St. Rep. 452. 60 N. Y. Supp. 452, aff'g 28 Misc. 733, 59 N. Y. Supp. 969.