23 N.Y.S. 954 | N.Y. Sup. Ct. | 1893
This action was brought to determine the rights of the defendant to hold and exercise the functions of the office of excise commissioner in the town of Albion, Orleans county. At the town meeting held in that town on the 8th day of March, 1892, there were cast 637 ballots for the relator, and 655 for the defendant. The defendant, having received the highest number of votes, was declared duly elected by the board of inspectors, and thereupon qualified, and entered upon the discharge of the duties of his office. The trial court found as facts that the ballots cast for the defendant were properly numbered and indorsed, and that at least 100 of the ballots cast for the relator were not numbered consecutively, so as to correspond with the numbers of the town tickets and the tickets voted for the defendant, but were of a much larger number. Does this invalidate the election? Assuming that the ballots so deposited with high numbers are “marked ballots,” we do not understand they operated to render void the ballots that were regular, and in accordance with the provisions of the statute. Those cast for the defendant were numbered consecutively from 1 upwards. They were given out by the inspectors, and voted in the orc|er in which they were numbered. True, they could be distinguished from those cast for the relator, bearing the higher numbers; so could every regular ballot be distinguished from the “marked ballots.” But the regular ballots are those which conform to the provisions of the statute, while the “marked ballots” are those which are prohibited. A marked ballot, voted with the intent that it shall afterwards be identified, is void and of no effect. So says the statute. To hold that the casting of such a ballot renders void the regular ballots, and invalidates the election, would leave it within the power of a few evil-disposed persons to nullify our elections, and deprive our citizens of their right of suffrage. In this case
It is contended that the statute does not require the ballots to be numbered from 1 upwards, and that for that reason the ballots cast, having the high numbers upon them, were regular. True, the statute does not, in terms, so provide. But it does provide that they shall be consecutively numbered. We think that it was intended that the ballots should be numbered from the unit upwards; that such is a fair and reasonable construction of the statute; but, if this were not so, they are to be numbered consecutively, and this would not permit the commencement of the numbering at the unit, and after a few numbers skip to 900, or some other higher number.
There are some irregularities in the proceedings of the town board, acting as inspectors of election, at the town meeting in question. There were two poll clerks appointed. The town clerk was present at the meeting, and kept the poll list until the two poll clerks were appointed. He then left, but was present at different times during the day, and was present and assisted at the canvass of the votes. The poll clerks so appointed kept the poll books. One entered the names of the voters, and the number of the town ballots, as the same were voted; the other kept the names of the voters, and the number of the tickets; and the two books, so kept, correspond with names and numbers. The poll list should have been kept by the town clerk, or, in his absence, by such person as should be chosen by the inspectors present, and the duties of the poll clerks should have been performed by the members of the town board. During the meeting the officers did not require all the persons voting to return the tickets not voted by them, and a number of such ballots and posters were left in the booths. The tickets should have been returned to the inspectors, and by them placed in the box kept for such ballots. But these we regard as irregularities, merely, not operating to destroy the secrecy of the ballot, or affecting the election. People v. Cook, 14 Barb. 259, affirmed 8 N. Y. 67; People v. Board of Canvassers of Chemung Co., 126 N. Y. 392, 27 N. E. Rep. 792.
The trial court, found that the relator was elected commissioner for the town in 1889, for three years, and entered upon the duties of his office, and continued to exercise such duties until the town meeting in question; that the defendant was not elected; and that the relator holds over, and is entitled to act as commissioner of excise. Under the view taken by us, the defendant was duly elected commissioner of excise, and it therefore becomes unnecessary to consider the question as to whether the relator would hold over in case there was no election. The judgment should be reversed, and a new trial ordered; costs to abide event. All concur.