75 N.Y.S. 278 | N.Y. App. Div. | 1902
This application was made against the board of inspectors, the county clerk and the city clerk. None of the other election officials was included. The relator’s affidavit stated that the certified statements of the canvass do not agree with the tally sheets or with the ballot clerk’s return sheet, the said return sheet does not agree with the tally sheets or with the certified statements, and certain excerpts are stated to show irregularities and lack of harmony therein, and to show other defects and irregularities. The opposing affidavits raised certain issues of fact not necessary now to detail. The rule is entirely familiar that the question as to the right to the writ is determined upon the assumption that the averments of the opposing affidavits are true. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215.) But as the Special Term had before it the inspectors’ return and statement of canvass, the original official statement of the result, the inspectors’ return of the first election district, the ballot return sheet and the tally sheets, I think that, aside from the issues raised by the opposing affidavits, and solely upon the facts as shown by these official records, a writ of peremptory mandamus might issue. The question then is whether, under the circumstances, the present writ requires any change or any amendment.
The law (Laws of 1896, chap. 909, § 110, subd. 1, as amd. by Laws of 1898, chap. 335) requires that the board of inspectors shall commence the canvass by comparing the poll books with the registers used on election day, as to the number of electors voting at the election, correcting any mistakes therein, and by counting the ballots found in the ballot boxes without unfolding them, save to ascertain that each is single, and by comparing the number in the ballot box found by this count with the number shown by the poll books and by the ballot clerks’ statement to have been deposited therein. The intention of the law that the check thus afforded by the poll books and by
. But I cannot see how the recount or the recanvass can be ordered in these proceedings as they now stand. The poll clerks are not before the court. The law (§§ 84, 103, subd. 3, 110, subd. 3) requires the poll clerks to make and to complete the tally sheets, to enter the count therein, to tally the split ballots, to add together the votes and the ballots wholly blank and void, together with the ballots not wholly blank on which no votes were counted for any candidate for the particular office, and to enter in the final, column this very sum whose variance from.the ballot clerks’ return is declared by the statute to be a “.mistake.” They had no notice of this proceeding, they had not appeared, nor do I find even an affidavit from one of them in this record. (People ex rel. Hasbrouck v. Supervisors, 135 N. Y. 522, 532.) If they were before the court, then there is no question but that, they and the election inspectors might be required to make a recount which would include, as I have said, a new canvass if the number of ballots required it. (Baird v. Supervisors, 138 N. Y. 95.)
If, however, there was, as shown by the preliminary count by the inspectors, 484 ballots to be canvassed, and yet an accurate re-reckoning shows that there were but 482 ballots to be found, then 2 ballots have disappeared, and I know of no remedy for that loss. But, notwithstanding the statement in the ballot clerks’ return numbered . 5, there may have been but 482 ballots found, by the inspectors in the box when they opened it and counted them. Mr. Ripple, an inspector, deposes-that the last voter on election day was Mr. Qualey,. who received the last ballot given out, and that the number of the
In conclusion, the entry of the sum in the tally sheets was, so far as the record shows, simply the entry of the mistake. In the words of Ingraham, J. (supra), “ until the correctness of the tally sheet is ascertained, the statute explicitly provides that the count is not complete ; the votes have not yet been canvassed.” The law required •“ a recount.” It does not appear that this was done, and, therefore, the court may and should order it to be done. And the recount required by the mistake on the tally sheets implies that there shall be a count, whether merely a re-reckoning or, if necessary, a recanvass prescribed by law. That the poll clerks as well as the inspectors are necessary officials in such procedure, I have heretofore ■attempted to show. And the court may order them to be brought in. (13 Ency. Pl. & Pr. 664.) I think that the order should be modified by directing that the proceedings be held open, with leave to apply to the Special Term for an order to bring in the poll clerks, and then for a writ directing the election officials, to wit, the inspectors and the poll clerks, to meet at such time and place as the Special Term may direct, and for the production then and there of the ballots and such records as the court may deem proper, and then and there to recount the vote, by proceeding in such manner as the court shall, in its writ, specify, conforming it therein, in every respect, so far as possible, to the procedure prescribed and required by the statute to be done on the day of election, in view of the provision of section 84 thereof, that “ such sum must equal the number of ballots voted, as shown by the ballot clerks’ return of ballots, and if it does not, there has been a mistake,” and by requiring that the officials shall first re-reckon the number of votes to be accounted for, upon the basis determined by the inspectors at the commence
All concurred.
Order modified in accordance with the opinion of Jenks, J., and ■as modified affirmed, without costs. . . . ..