155 N.Y.S. 979 | N.Y. App. Div. | 1915
These are appeals taken, one by the petitioner, Brown, and one by the intervenor, Hicks, from a final order made at the Kings County Special Term, September 30, 1915, in a proceeding brought under section 381 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1913, chap. 821], to secure a recanvass of the “void and protested” ballots contained in the sealed envelopes and cast at the general election of a Representative in Congress, held November 3, 1914, in the first congressional district of this State. The said envelopes were duly produced in court and opened and the general ballots therein there marked respectively “Exhibit 1,” “Exhibit 2,” etc., and the court at Special Term by said final Order passed upon said ballots so far as the same may affect the election of Representative in Congress in said district.
The petitioner, Brown, was the candidate of the Democratic party, and the intervenor, Hicks, that of the Republican. The said Brown here appeals from so much of said order as passed upon ballots marked respectively as Exhibits 2, 7, 26, 28, 38, 39 and 48, and the said Hicks has appealed from so much thereof as passed upon ballots marked Exhibits 37, 39 and 40. It is, therefore, necessary that this court review the decision of the Special Term as to nine separate ballots, namely, Exhibits 2, 7, 26, 28, 37, 38, 39, 40 and 48.
As to the ballot marked Exhibit 2 both parties here agree that the court at Special Term properly held it void; but the petitioner claims that the court there erred in deciding that the ballot had been counted by the inspectors for him and in directing that it be deducted from his count. He contends that there is no proof that the inspectors counted the ballot as a vote for him.
From this return it would seem that all the votes not blank were counted for some one save the one returned as void; also that there were four ballots “ protested as marked for identification,” all of which were counted for the several candidates named thereon, and that both those four ballots and the one held void and counted for no candidate were ‘‘ in the sealed package returned herewith.” The sealed package or envelope, however, proved to be marked as containing only four ballots marked “protested as marked for identification,” and upon being opened it was found to contain only four ballots, each one marked in blue pencil “ marked for identification.”
The counsel for the petitioner states in his brief that such marks were made by the justice at Special Term; whereas the counsel for the intervenor in his brief says that they were not made by the justice, and as evidence thereof refers to the fact that they do not bear his initials, and that the record shows that when the envelope was opened the justice remarked: “There are four ballots in the envelopes, endorsed, ‘Marked for identification. ’ ” However the truth may be in regard to this disputed matter, it is plain that no one of the four ballots was marked void by the inspectors, and that the inspectors upon the outside of the sealed envelope filled in only the blank in the line designated “protested as marked for identification ” and not the blank in the line designated “ void ballots.” From these facts I think that the fair inference is that somehow or other the ballot which they treated as void was not placed by them in the sealed envelope. I conclude, therefore, that tne learned justice at Special Term decided correctly that this ballot, Exhibit No. 2, had been counted for the petitioner, and in deciding that it must be deducted from the petitioner’s total.
As to the ballot marked “Exhibit No. 7,” which the Special Term held valid as a vote for the intervenor Hicks, and, therefore, added one vote to his count, although the petitioner’s
As to ballot “Exhibit No. 38,” next discussed in the brief of petitioner’s counsel, it had the name of the petitioner written in the blank line, although his name was printed as a candidate for the same office, namely, Representative, upon the ballot. The court at Special Term held that the ballot so marked was void, at least as to the office of Representative. Petitioner’s counsel claims here that the provisions of rule No. 9 of section 368 of the Election Law (as amd. by Laws of 1911, chap. 649), expressly declaring void a ballot upon which the name of, a person, printed upon the ballot, has been written by the voter, is not expressly continued in the present amended law, section 358 (as amd. by Laws of 1913, chap. 821). I think, however, that the effect of the present provision, viz., subdivision 4 of section 358 (as amd. by Laws of 1913, chap. 821), viz., “To vote for any candidate not on the ballot, he shall write the candidate’s name on a line "left blank in the appropriate place,” has the same effect; that, in other words, the elector who so wrote relator’s name in the blank line on ballot No. 38 did not vote for him in the authorized way, that is, as provided by subdivision 2 of said section 358 (as amd. by Laws of 1913, chap. 821). Hence I conclude that the court at Special Term properly disposed of said ballot, Exhibit No. 38.
As to ballot “Exhibit No. 26,” the petitioner here contends that it should not by the final order have been added to the intervenor’s total, because “ it is quite as probable that it has already been counted [by the inspectors] for him as that it has not;” while the counsel for the intervenor seems to concede that it should not have been so added, as it had already been counted for the intervenor; but he couples his concession with the claim that it should be held also that ballot Exhibit No. 28 was counted by the inspectors as a valid vote for the petitioner, and, therefore, he contends that such vote, the ballot having properly been held to be void, should at Special Term have been deducted from the petitioner’s count. As this concession
It appears that ballots Exhibits 26„ 21, 28 and 29 were found in the same sealed envelope; that the inspectors’ return from that election district shows that for the office of Representative there were: “Blank ballots, 85; void, 1. Total, blank, void and protested, 36.”
The sealed envelope was indorsed merely, “Eight void ballots.” It contained four Constitutional Convention delegate ballots and four general official ballots, each without any indorsement upon it by the inspectors. From the return it would appear that they held only one of the ballots void as to that office, but that they did hold thirty-five ballots blank as to the same. It is plain that ballot No. 26 was a valid vote for the intervenor, as the Special Term held. Its only defect was that the voter marked his cross in the proper voting spaces in front of each of five candidates for the office of State Treasurer, which, under section 358 of the Election Law (as amd. by Laws of 1913, chap. 821), made the ballot a blank vote for such office. Exhibit No. 21 was an absolute blank for the office of Representative. Exhibit No. 28 had a semi-circular mark put over the left part or side of the cross in the voting space in front of petitioner’s name and should be held void, as the Special Term decided. The counsel for the petitioner, however, claims that the court should have held that ballot valid within the provision of section 358 (as amd. by Laws of 1913, chap. 821), viz., “ but no ballot shall be declared void because a cross X mark thereon is irregular in character.” I do not think that this contention is well made, as the semi-circular mark seems to be imposed over the cross and not to be a part thereof. In this view of the matter, that ballot might properly have been regarded by the inspectors as wholly void under section 358 (as amd. by Laws of 1913, chap. 821), viz.: “ Any mark other than a cross X mark or any erasure of any kind shall make the whole ballot void.”
Ballot “ Exhibit No. 29 ” had a cross in the voting space in front of each of five different candidates for the office of
I conclude, therefore, that the decision of the Special Term was correct in substance, although the verbal distinction between “void” and “blank” was not there made; and that the final order correctly added the vote upon ballot No. 26 to intervenor’s total, but made no change as to the other three, as no one of them had been counted by the inspectors.
As to ballot Exhibit No. 39, the court below held that it was void on account of the third mark in the cross in one of the Comptroller’s voting spaces; at least, both counsel in their briefs declare that such was the ground of the decision at Special Term. From my inspection of the ballot it seems to me quite as likely that the voter, in making the heavy transverse fine or smear, was attempting to erase the cross which he had at first made in front of Travis’ name, and later made a cross in front of Sohmer’s name. This seems likely from the fact that he voted otherwise the Democratic ticket. Such erasure, under section 358 (as amd. by Laws of 1913, chap. 821), would make the ballot equally void. If the ballot be not void by reason of such mark, it is a valid vote for the petitioner. The Special Term refused to* count it for him or to deduct it from his count, as that court held that it had been regarded by the inspectors as void. The petitioner here contends that the three marks contained in such voting space should be regarded as constituting merely an irregular cross and so as saved by the provision of section 358 (as amd. by Laws of 1913, chap. 821), above quoted.
In the recent case of Matter of Garvin (168 App. Div. 218, 222) the First Department held that excessive crosses in a voting space make the ballot void, and it seems to me that that is .just the situation here — that is, that there are two crosses in
At the most it is a case here where the general, the written, return, in giving two as the number of void ballots, was inconsistent with the indorsements upon the ballots themselves, which made four void, one of which plainly was merely blank. It seems to me that, if anything, the particular indorsement should prevail as a special return over the general return.
As to ballot No. 48, which was held void below, the defect is that there appears at the upper end of the line of the cross, which tends to the right, a sort of a little curve, made apparently in closing that line, as though the pencil had flourished a bit, and also there is something similar, but not so marked, at the top -of the-other line of the cross. It seems to me that neither is a distinct line, but that each was made with the same impression of the pencil, and that, therefore, the entire thing should be considered simply as an irregular cross and' a valid voting mark; and that the order appealed from should be modified accordingly, so as to give that vote to the petitioner. This ballot seems to me to present a far different case from that of either of the ballots, Exhibits 28 and 39, above considered.
I advise, therefore, that the order appealed from be modified so as to provide that the ballot marked “Exhibit No. 48” was and is a valid ballot and vote for the petitioner, and, therefore, by reason of such ballot, that one vote be added to the total number of votes heretofore counted for said petitioner, Brown, by the inspectors; and that, as so modified, said order be affirmed, without costs to either party.
Jenks, P. J., Carr, Rich and Putnam, JJ., concurred.
Final order modified in accordance with opinion, and as so modified affirmed, without costs to either party.