176 A.D. 330 | N.Y. App. Div. | 1917
The action was in the nature of quo warranto pursuant to sections 1948 to 1956 inclusive and sections 1983, 1984 and 1986 of the Code of Civil Procedure, to oust George A. Porter, the defendant, from the office of supervisor of the town of Albion, in Orleans county, and to declare William E. Karns, the relator, by the legal votes of the electors of that town at an election held on the 1th day of March, 1916, duly elected to such office and entitled to hold the same. The defendant had been declared elected by the canvassing board and was holding the office. Under the direction of the trial court the- jury rendered a verdict in favor of the relator and the judgment appealed from was thereupon granted ousting and excluding the defendant from the office and awarding the title to the office to the relator.
Three candidates were voted for at the election, George A. Porter, the defendant, William E. Karns, the relator, and Bert L. Perkins, and the official returns showed that Porter received 661, Karns 665, and Perkins 69 votes. This result gave Porter a plurality of two votes and he was declared elected, filed his bond, took the oath of office and entered upon the discharge of the duties thereof.
Upon the trial all the ballots cast at the election were produced and investigated by the court to determine their validity.
Upon the argument, the counsel for the respective litigants
By the agreement of counsel only eighty-one ballots were submitted to this court for its consideration in determining this appeal, marked as Exhibits 1 to and including 83 respectively, excepting 22 and 64.
There was no evidence offered nor received upon the trial raising any issue as to the validity of ballots beyond what was disclosed solely by the ballots themselves, but early in the trial the defendant raised the question whether or not a ballot claimed to have been marked for identification or otherwise than with a pencil containing black lead or presenting the appearance of an erasure or effacement, was a matter of fact as to which fair-minded persons might differ and bearing upon which conflicting testimony might be adduced. If upon the face of the ballots any such question of fact arose we are not prepared to hold that the Court of Appeals has determined the question adversely to' the defendant. In People ex rel. Feeny v. Board of Canvassers (156 N. Y. 36) the opinion of the court was pronounced by Judge Gray who did not discuss this question. Judge Haight, who filed a concurring opinion, among other things, stated: “Questions of fact may arise as to whether a ballot is marked for identification, or is torn by a voter or the inspectors of the election, or is marked otherwise than with a pencil containing black lead, which may depend upon the testimony of witnesses.”
Judge O’Brien" delivered an opinion concurred in by only one other judge in which he said: “That statute declares that when a ballot discloses certain marks or physical appearance it shall not be counted, and we have the ballots before us with certain marks and appearances upon them, and whether they come within the condemnation of the statute is a pure question of law.”
These expressions of opinion are dicta only. In People ex rel. Krulish v. Fornes (175 N. Y. 114) Judge Oijllen said:
That again was a dictum. In Matter of Metz v. Maddox (189 1ST. Y. 460) Chief Judge Cullen said: “Either party may appeal to the courts to review the action of the canvassers in holding any ballot void or to have any of the protested ballots thrown out as marked for identification. This review presents for determination only questions of law arising on the face of the ballots.”
That again was a dictum although proceeding from a very high source. It is true that the Feeny matter was a mandamus proceeding under the Election Law, the Krulish matter was a proceeding by certiorari under the charter of the city of New York, and the Metz matter was a proceeding for a writ of prohibition to prevent a recount of ballots under an act held to be unconstitutional by the Court of Appeals, and were not actions in the nature of quo warranto and, therefore, are to be distinguished from the case at bar.
Assuming, however, that questions of fact might arise in the respects referred to, we have carefully examined the ballots submitted to us for consideration and we find nothing on them raising a question of fact.
Passing to a consideration of these ballots, it may be useful . to dwell briefly upon the history of the use of ballots at elections in this State pursuant to constitutional and statutory authority.
Prior to the first Constitution, that of 1777, voting was largely viva voce, but that Constitution (§§ 6,17, 20) established the system of voting by ballot for some offices and the system was extended from time to time until we have that of to-day. Voting by ballot probably implies the exercise of the franchise so that it shall not be known for whom or for what the ballot was cast, but there was no express reference to the secrecy of the ballot in any of the Constitutions of the State until the adoption of section 5 of article 2 of the present Constitution.
From the earliest legislation for voting by ballot there have been requirements to secure secrecy in voting. For instance,
Chapter 366 of the Laws of 1880 provided for uniform ballots and that act and chapter 56 of the Laws of 1880 were designed to secure greater secrecy in voting than had theretofore existed and to diminish election frauds.
Chapter 262 of the Laws of 1890 inaugurated a radical change in the Election Law and among other things provided for official ballots printed and distributed at public expense. It also contained the following (§ 27): “If any voter spoils a ballot he may obtain another full set and so on successively not exceeding four full sets in all, upon returning to the ballot clerks the set of ballots containing the spoiled ballots.” (Note section 31 of the act regarding defective ballots in connection with section 42 of article 4 of title 4 of chapter 130 of the Laws of 1842.) This statute was amended by chapter 296 of the Laws of 1891 and section 31 thereof as so amended provided, for the first time, that objections might be made to ballots on the ground that they were marked for identification. Chapter 680 of the Laws of 1892, being chapter 6 of the General Laws, replaced former legislation upon the subject of the Election Law. Chapter 810 of the Laws of 1895, amending the act of 1892, introduced the system of voting by cross marks. This legislation was replaced and amended by chapter 909 of the Laws of 1896 constituting chapter 6 of the General Laws. This general Election Law of 1896, although principally a
It should be carefully noted that, as the provisions regulating elections existed in March, 1916, when the election in dispute
This section was amended by chapter 810 of the Laws of 1895 and the provision quoted was retained somewhat changed so as not to include ballots that were objectionable upon some other ground. In the Election Law of 189 6 this provision was retained in subdivision 3 of section 110 and also in the amendment thereto made by chapter 335 of the Laws of 1898, in both of which it begins in this manner: “When a ballot is not void,” etc. This provision was retained in section 370 of the Election Law of 1909 as contained in the Consolidated Laws where it begins in this wise: “ When any particular ballot is not void,” etc. This provision was repealed by chapter 821 of the Laws of 1913 and thereby legislation upon the subject of identification of ballots at elections disappeared, as hereinbefore observed. There was, however, preserved in section 369, as amended by chapter 821 of the Laws of 1913, ample opportunity for objection to the counting or to the refusal to count any ballot, upon any tenable ground.
We have, therefore, from the presence, in the statutory law, of provisions on the subject of the intention of the voter and on the subject of ballots marked for identification, and the
The law thus established has been developed and crystallized from experience in the practical use of our system of voting by ballot. There is now no such thing as a ballot marked by the voter for identification. The ballot is valid or void, judged by a definite test. Room for our consideration of the intent of the voter is slight, because the statutory standard to determine the validity of a ballot has been arrived at in recognition of that important element. The case at bar illustrates how insignificant a part the intention of the voters plays in determining the validity of ballots. We start with the concession that no elector cast a ballot with a fraudulent intent. If intent were to govern, every ballot should be counted. Again, the largest number of ballots which we are about to hold as void will be so held because of erasures, whereas those ballots indicate, in almost every instance, the detection of an error made by the voter and his deliberate, but mistaken, attempt to correct the error.
There seems, however, to remain by sound interpretation of the statute, if not expressly stated therein, the right of the court to consider, within narrow limits, the intention of the voter in respect of certain pencil marks on a ballot. The court may say that slight pencil marks on a ballot were made by the voter unintentionally, such as might be made in handling the ballot and its accidental contact with the pencil. Such marks do not include, and are to be distinguished from, marks made intentionally.
In Matter of Fallon (197 N. Y. 336, affg. 135 App. Div. 195), where the controversy arose over the November election of 1909 when a valid voting mark was described as “ one straight line crossing another straight line at any angle within a party circle, or within the voting spaces,” and a void ballot as “a ballot upon which there shall be found any mark other than a single cross X mark,” etc., the Court of Appeals hold that it was practically impossible for a person to make a line that is technically straight without the use of mechanical appliances
In Matter of Garvin (168 App. Div. 218) the Appellate Division of the First Department held that slight pencil dots appearing adjacent to the voting cross, evidently made by the voter’s resting his pencil upon the paper before or after making the cross, did not invalidate his ballot. The controversy there arose over the ballots cast at a primary election held in September, 1914. In that same case it was held that one fine of a cross in the voting space on a’ ballot made the ballot void.
In Matter of Brown v. Board of Canvassers of Queens Co. (170 App. Div. 476), where the controversy arose over the election of 1914, it was held that a ballot having a semi-circular mark over the voting cross in the voting space, but not a part of it, was void. That case was reviewed by the Court of Appeals where the decision of the Appellate Division was modified in some other respects but this ruling was not disturbed because Exhibit No. 28 (the ballot in question) was not furnished to the Court of Appeals. (216 N. Y. 732.)
In this connection we think we should say that the courts, in their desire to avoid disfranchising electors, have approached nervously near the point of overriding statutory requirements. The simplest form of a signature for those who cannot write is that of a cross. The ideal form of the cross to be made by a voter is given in the statute. It could not reasonably be expected that any voter would have the practiced eye and the practiced hand to make, without instruments, the ideal cross mark, so that it was reasonable for the courts to say that the two lines forming the cross need not be technically straight,
After this review of the law, we may now classify and pass upon the ballots submitted to us for that purpose.
We have concluded that the ballots represented by the following exhibit numbers were valid: 4, 7, 13, 23, 25, 27, 29, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 54, 55, 57, 58, 59, 60, 62, 69, 70, 71, 72, 73, 74, 76, 78, 79, 80, 81 and 83.
Numbers 25, 36, 37, 38, 41, 48, 54, 58, 60, 73, 76 and 80 of the foregoing have irregular voting marks thereon which are not condemned by our liberal interpretation of the law.
Numbers 13, 23, 71 and 72 have double lines in the voting marks.
Numbers 7, 25, 29, 32, 42, 46, 47, 54, 57, 58, 60, 74, 78 and 79 have imperfections due to the penetration thereof by pencils used over rough or unsuitable surfaces which do not affect their validity by agreement of counsel.
Numbers 7, 13, 54, 73 and 83 have pencil marks thereon clearly of accidental origin.
We have concluded that the following ballots represented by the following exhibit numbers were void: 1, 2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 24, 26, 28, 30, 31, 33, 52, 53, 56, 61, 63, 65, 66, 67, 68, 75, 77 and 82.
All these are void because of erasures or defacements except 19, where there is a single line of a cross in the voting square before the name of Friendly A. Stoughton in the seventh section; 26, where there are some marks other than a cross mark in the voting square before the name of Elmer E. Thomas in the twelfth section; 31, where in the voting square before the name of William E. Earns in the first section there is a figure made of many lines but not a cross mark; 33, where there are several lines in the voting square before the name of Charles W. Butts and like lines in the voting square before the name of Howard Harling in the fifth section that are not cross marks; 52, where in the voting square before the name of William B. Youngs in the third section there is an irregular figure but not a cross mark; 63, where in the voting square before the name of Orville H. Taylor in the fourth section there is an irregular
In the eighty-one ballots submitted to us, forty-five are valid and thirty-six void.
Of the votes so found valid numbers 23, 25, 27, 29, 32, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 60, 69, 70, 71, 72, 73, 74, 76, 78, 80 and 81 were cast for Earns, and numbers 4, 7, 13, 54, 55, 57, 58, 59, 62, 79 and 83 were cast for Porter.
Of the votes so found void, numbers 24, 26, 28, 31, 33, 52, 53, 61, 65, 67, 75, 77 and 82 were cast for Earns and numbers 1, 2, 3, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 30, 56, 63, 66 and 68 were cast for Porter.
The record shows and on the argument it was conceded that there had been cast 601 unquestioned ballots for Earns and 616 for Porter. Of the questioned ballots, the trial court determined that 37 should be counted for Earns and 11 for Porter. We have counted 34 of the questioned ballots for Earns and 11 for Porter. The result is that Earns received 635 valid ballots and Porter 627.
It follows that the judgment and order appealed from should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.