188 A.D. 834 | N.Y. App. Div. | 1919
The certified statements of the returns made by the inspectors of election were duly filed and were canvassed by the board of aldermen acting as the board of canvassers. It was found that the relator, who was the Republican candidate, received 4,206 votes and the respondent, who was the Democratic candidate, received 4,205 votes. A certificate of election was accordingly issued to the relator who duly qualified. The board of aldermen met on the 7th day of January, 1918, and at that time it received a formal notice of contest from Dempsey, specifying the grounds upon which he claimed to be entitled to be seated, to which Colne filed a formal answer and the matter was referred to the committee on privileges and elections, consisting of nine members.
Section 27 of the Greater New York charter (Laws of 1901, chap. 466) provides as follows: “ The board of aldermen shall determine the rules of its own proceedings; shall be the judge of the election returns and qualifications of its own members, subject, however, to review by certiorari of any court of competent jurisdiction.” And formerly the statute did not limit the review to certiorari. (See Laws of 1897, chap. 378, § 27;
The method of procedure adopted by the committee was to make a record of the number of ballots in each district conceded by counsel to be good and of the ballots in each district protested by either party, together with the grounds of protest, and those so protested were marked with exhibit numbers, commencing with Exhibit No. 1, and were placed in separate envelopes. On the completion of this work, it was found that there were upwards of nine hundred ballots so protested. The committee then held executive sessions, at which the ballots in each election district were considered and voted upon. In this canvass by the committee records were made of the ballots unanimously conceded by the members of the committee to be valid and void, and those held valid and void by a majority vote only. The views of the members of the committee differed with respect to eighty-one ballots, thirty-two of which were for Colne and held to be void by a majority vote, and forty-nine of which were for Dempsey and held valid by a majority vote. This action of the majority of the committee gave Dempsey a plurality of five and the majority so reported; and the minority reported in favor of deciding the Dempsey votes void and the Colne votes valid. The majority report was adopted and Colne was unseated and Dempsey seated. The relator attempted to confine the review by certiorari to the eighty-one bailóte concerning
An examination of the ballots confirms the election of Dempsey and by a much larger plurality than that given by the board' of aldermen. We find many more errors in counting void ballots than in rejecting valid ones. This is just what might be expected in authorizing a judicial review of a canvass of ballots under our Election Law, as it existed in the fall of 1917, for down to that time the trend of legislation had been away from having the validity of the ballot depend on the intent of the voter to be determined by the election inspectors, and toward having such validity determined by the application of fixed rules prescribed by the Legislature, leaving to the election inspectors no discretion (Election Law [Consol. Laws, chap. 17; Laws of 1909, chap. 22], §§ 82, 86, added by Laws of 1911, chap. 891, as amd. by Laws of 1916, chap. 537; Id. § 331, added by Laws of 1913, chap. 821, as amd. by Laws of 1916, chap. 537; Id. § 358, as amd. by Laws of 1916, chap. 537; People ex rel. Karns v. Porter, 176 App. Div. 330), and courts apply such statutes rigidly as intended by the Legislature to prevent corruption in election while inspectors of
Under these and similar provisions of the former Election Law, it has been held that any erasure on the ballot manifestly made by the voter, or failure to cross the line of the cross mark within the voting space, or making a cross mark on the ballot other than in the voting space, or using any instrument other than a pencil with black lead in marking the ballot, or making a semi-circular mark over and detached from the cross mark, or making one-half of a cross mark, or making a number in the voting space, or an incomplete cross mark, or a single line in the voting space instead of a cross mark, or any mark other than the cross mark in the voting space, or a figure consisting of many lines but not constituting a cross mark, renders the entire ballot void and that whether a ballot is valid or void is a question of law. (People ex rel. Karns v. Porter, 176 App. Div. 330; Matter of Slevin, 179 id. 618; People ex rel. Brown v. Board of Suprs., Suffolk County, 170 id. 364; People ex rel. Feeny v. Board of Canvassers, 156 N. Y. 36; Matter of Garvin, 168 App. Div. 218; People ex rel. Bell v. Board of Canvassers, 65 Misc. Rep. 223; Matter of Houligan, 55 id. 5. See, also, Matter of Fallon, 135 App. Div. 195; 197 N. Y. 336; People ex rel. Wells v. Collin, 19 App. Div. 457; affd., sub nom. People ex rel. Wells v. Common Council, 154 N. Y. 750.) But voting more than once for the same candidate by making a cross mark in the voting space opposite his name in different columns, or making a heavy cross consisting of more than one line crossing another and with flourishes or separated at the end, evidently made by the voter in running the pencil back and forth, or making a X in the marked out space not requiring a X where the name of a candidate is written in, or a cross of double lines or evidently accidental dots or pencil lines, writing part of a name of a candidate whose name is not printed in the space for writing in a name, or a smudge or ink mark on the border which might have been made by the inspectors does not invalidate the ballot. (Matter of Fallon, supra; People ex rel. Feeny v. Board of Canvassers, supra; People ex rel. Brown v. Board of Suprs., Suffolk County, supra; People ex rel. Karns v. Porter, supra; Matter of Garvin, supra.) In determin
The result of our review of the action of the board of aldermen is an increase in Dempsey’s plurality from five to forty-two votes.
It follows that the action of the board of aldermen in
Clarke, P. J., Smith, Merrell and Philbin, JJ., concurred.
Writ dismissed and proceedings confirmed, with fifty dollars costs and disbursements to respondents.