who are in the place where the election is held, shall be required to cast their ballots before the polls are closed. Inspectors must keep the poll list containing the name and address of each qualified voter voting either for candidates or upon other propositions before the election for consideration.

Challenge of Voters.- All persons named upon the poll list as having been challenged prior to the day of election must also be challenged at the election before they are given ballots to vote. A qualified voter of the school election district may challenge the right of a person to vote at the time he requests a ballot. Any person thus challenged must be afforded the opportunity to make the oath prescribed in section 216 of the Education Law. If a person challenged so swears or affirms, his vote must be received. If he refuses to so swear or affirm he shall not be given a ballot or permitted to vote.

Penalty for Falsely Swearing or Illegally Voting.— I. A person who wilfully swears or affirms falsely as to his right to vote at a school election after being challenged, is guilty of perjury and may be punished in accordance with the provisions of the penal law for the commission of such crime.

2. A person who is not qualified to vote at a school election, but who shall vote at such election, although not challenged, is guilty of a misdemeanor, punishable by a fine of not less than $25 or by imprisonment of not less than thirty days, or by both such fine and imprisonment.

Canvass of Votes.- 1. As soon as the polls of the election close the inspectors must count the ballots which are in the box, without unfolding them. The number of ballots found in the ballot box must be compared with the number of persons recorded on the poll list as having voted. If the number of ballots exceed the number of names on the poll list such ballots must be replaced, without being unfolded, in the ballot box from which they were taken. Such ballots must then be thoroughly mingled in such box and one of the inspectors designated by the board shall then publicly draw out a sufficient number of ballots so as to make the number of ballots left in the box equal to the number of names on the poll list. The ballots which are drawn out shall not be unfolded, but shall be placed in an envelope, which shall be sealed, and indorsed with a statement of the number of such excess ballots and signed by the

inspector who withdrew such ballots. This envelope must then be placed in the box for defective ballots.

2. The inspectors shall then count the votes cast for each candidate and shall keep a tally list of the same. Such inspectors shall also make a statement showing the names of the candidates receiving votes and the number of votes cast for such candidates. They shall also make a statement containing the number and a description of the ballots which are declared void and also the number of wholly blank ballots which are cast. These statements must be signed by the inspectors. The ballots which are declared void and not counted shall be enclosed in an envelope which shall be sealed and indorsed and signed by the inspectors. This envelope must be placed in the ballot box containing defective ballots.

3. After the inspectors have thus counted the ballots and prepared their statements the ballots shall be replaced in the ballot box. Each box shall then be securely locked, sealed, and deposited by an inspector chosen for that purpose with the clerk of the board of education. The unused ballots shall be placed in a sealed package and returned by an inspector designated for that purpose to the clerk of the board of education at the same time that the ballot boxes are delivered to him. The statement of the canvass of the votes shall also be filed with the clerk of the board of education on the day following the annual election.

Canvass by Board of Education.— The board of education is required to meet at its usual place at 8 o'clock on the evening of the day following an election. Such board should forthwith examine and tabulate the statement of the results of the elections in the several election districts. The board should also canvass the returns as contained in such statements and determine the number of votes cast for each candidate. Thereupon the board shall declare the result of the canvass. The candidates receiving The candidates receiving a plurality of the votes cast respectively for the several offices shall be declared elected. The clerk of the board of education shall record the result of the election as announced by the board.

Notice to Candidates of Election. The clerk of the board of education shall within twenty-four hours after the result of the election has been declared by the board of education serve written notice, either personally or through the mail, upon each person declared to be elected a member of the board of education.

REVIEW QUESTIONS

To what cities of the State does the city school election law apply? Το what cities does it not apply? What is the date of the annual city school election? During what hours must the polls be open? Into what districts must a city be divided? When? How many? How must such districts be arranged? How must such districts be defined? How may they be modified? Where must school elections be held? Who must give notice of annual election? How? What information must it contain? What qualifications must a person possess to be entitled to vote at such election? Who prepares a poll list? When? What must such list contain? How must the names be arranged? Where must it be filed? When? Who may examine it? When? What arrangements must be made therefor? In what way may the name of a person omitted from such list be placed on it? How may a name be transferred from the list of one district to that of another? Who revises the list? How? How may challenges be made previous to the day of election?

What must be done with the corrected list? When, where and by whom are such lists given to inspectors? When and by whom are inspectors of election appointed? How many? By whom are they notified? How are vacancies filled? Under what conditions may additional inspectors be appointed? How do they organize? What compensation do they receive? Explain fully how a candidate may be nominated for office. Describe fully how ballots must be prepared. To whom are they delivered? When? By whom? How many must be printed?

What effect will the failure to use official ballots have upon an election? When may voting machines be used? How must the election be generally conducted? What ballot boxes must be furnished? By whom? Must booths be provided? How must a ballot be folded? Who are entitled to vote after the hour set for closing the election? Who may challenge the right of a person to vote? Is a written challenge deposited with the clerk of a board of education sufficient? May a person vote whose name is not on the polllist? How? What must a challenged person do in order to vote? What penalty may be imposed upon a person who falsely swears in his vote? What penalty may be imposed upon a person who is not legally qualified to vote but who votes and does not swear in his vote?

Who canvasses the votes? Describe the method fully. What statements must inspectors make? What must be done with these statements, tally sheets, etc.? Explain fully what must be done with the ballots after the canvass is completed by the inspectors.

What canvass must the board of education make? When? What declaration should it make? What record must be made? Who notifies the persons elected at such election? How?

CHAPTER XXXIII

APPEALS TO THE COMMISSIONER OF EDUCATION

[Article 34]

Who May Appeal. Any person considering himself aggrieved under the provisions of this title of the Education Law may bring an appeal to the Commissioner of Education for judicial determination.

Action Appealable.- Any action of a school district meeting, of a board of education, of a supervisor in relation to school moneys, of a district superintendent or other officer relating to the establishment, dissolution, consolidation, or modification of school districts, or an apportionment of school moneys, or the action of any of the foregoing concerning any other matter under the education law, or pertaining in any way to the school system, may be reviewed by the Commissioner of Education on appeal to him in due form. Judicial Authority. The Commissioner of Education is an executive officer, and is also charged with the performance of duties which are judicial in character. The administration of the school system through local officers and the action of district or town. school meetings give rise to numerous questions which must be settled by some judicial authority. It is important that these numerous questions shall be settled at an early date and with the least expense possible. To meet this situation, the State Legislature has conferred upon the Commissioner of Education the power to hear and determine questions of this kind in the same manner that they are heard and determined by courts. Many appeals are decided by the commissioner each year, and since vesting this power in the chief officer of the education system over 11,000 appeals have been decided by him.

Powers of Commissioner.- Under this title of the education law the Commissioner of Education is given power to regulate the practice under which appeals shall be brought under his jurisdiction. He may render a decision on the law and the facts submitted and make any order necessary to give force and effect to his decision.

Decision Not Reviewable.- The decision of the Commissioner of Education on an appeal brought before him by an aggrieved party from any decision made by a district or town school meeting, by any district or town school officer, by a supervisor in relation to payment of school moneys, or an appeal brought before him by any other official act or decision pertaining to the school system of the State, is final and conclusive and cannot be reviewed by any

court.

Decision Reviewable.- An original application to the Commissioner of Education to act in a case where no action has been taken before, is not an appeal to the Commissioner of Education from any decision of an officer or body. It is a direct application to the commissioner to exercise a power which is original and not appellate. An application, therefore, to the commissioner to remove a trustee of a school district is not an appeal in the sense in which this term is used in the education law. The action of the commissioner in a case of this kind was held to be reviewable by the courts. (159 N. Y. 162.)

The law was amended in 1910 providing that the Commissioner of Education could institute such proceedings as the education law authorizes and that his decision in any such proceeding or in any case brought to him for determination on petition or appeal should be final and not subject to review. The decision of the commissioner therefore in a case where he acts originally would seem to be final and not reviewable by the courts.

Section 890 of the Education Law permitting appeals to the State Commissioner of Education and making his decision on such appeal final and conclusive is constitutional and valid. The purpose of this statute is to put all controversies over school matters in his charge and to remove them, as far as practicable, from the courts, and hence, a decision of the State Commissioner of Education on an appeal from an order of consolidation is not open to review in the courts. (See Bullock v. Cooley, 225 N. Y. 566.)

Rules of Practice.- The Commissioner of Education has prescribed the following rules to govern the practice on appeals:

1. Form of appeal. An appeal must be in writing, addressed "To the Commissioner of Education," stating the grounds upon which it is taken, and signed by the appellant or appellants. The appeal must be verified by the oath of the appellant or appellants. When the appeal is made by the trustees of a district, it must be signed by all the trustees, or a reason must be given for the omission of any, verified by the oath of the appellant or of some person acquainted with such reason.

2. Service of appeal and papers. A copy of the appeal, and all the statements, maps and papers intended to be presented in support of it, with the affidavit in verification of the same, must be served on the officer or officers whose act or decision is complained of, or some of them; or if it be from the decision or pro