People Brown v. . the Bd. of Supervisors of Suffolk Cty.

We think it is our duty to entertain jurisdiction of these appeals. It is true that Congress is the final judge of the qualifications of its own members, and that Congress has now convened. But it remains our duty to require the public officers of the state to comply with the state's laws (People ex rel.Sherwood v. State Board of Canvassers, 129 N.Y. 360, 372). No certificate of election has yet been issued to either candidate; no return has been transmitted by the secretary of state to the House of Representatives; and neither candidate has yet been accepted or sworn in as a member. The certificate of election will establish a prima facie right, and should register the true result. If it had already been issued, and the representative sworn in as a member, there would arise a different situation, involving different questions, on which we do not attempt to pass. But until the certificate has been transmitted and acted upon, if not thereafter, the courts of the state are open to the candidate who complains that the certificate is about to issue in violation of the law.

We pass, therefore, to a consideration of the merits.

In the Suffolk county case we think that the Appellate Division erred in its rulings as to ballots Nos. 161, 79, 151, 153, 178, 193, 444, 461, and that the objections of the intervenor Hicks, in so far as they relate to those ballots, should be sustained. The result is to increase his plurality by eight votes. In all other respects the order of the Appellate Division should be affirmed.

In the Nassau county case we think that the Appellate Division erred in its rulings as to ballots Nos. 318, 367 and 250, and that the relator's objections as to Nos. 318 and 367, and the intervenor's objections as to No. 250, should be sustained. The result is to give the relator two additional votes, and the intervenor one additional vote. In all other respects the order of the Appellate Division should be affirmed.

In the Queens county case we are unable to pass upon ballots Nos. 28, 39 and 48 for the reason that none of the Queens county ballots have been filed with us. Even if the questions in respect of these ballots were answered in favor of the relator, the result would not be changed. We have considered the other objections to the order of the Appellate Division and find them to be untenable.

The orders should be modified in accordance with this opinion, and as so modified affirmed, without costs.

WILLARD BARTLETT, Ch. J., CHASE, COLLIN, CUDDEBACK, HOGAN, CARDOZO and POUND, JJ., concur.

Ordered accordingly.