117 A.D. 374 | N.Y. App. Div. | 1907
Order affirmed, with ten dollars costs and disbursements, on opinion of Sutherland, J., delivered at Special Term.
All concurred.
The following is the opinion delivered at Special Term:
This is an application for a writ of mandamus to compel the inspectors of election and ballot clerk officiating at a village election, held in the village of East Rochester on the 13th day of November,' 1906, to reconvene and return the unofficial ballots voted at such election, and to correct the statement of the result of the .canvass of such election, and to make a proper certificate of the result thereof.
The first election in the village of East Rochester was held November 13, 1906. The village had recently become incorporated under the provisions of the general Village Law,
Under section 80 of the Election Law
Section 111 of the Election Law says..; “ Such-inspectors-shall,
In this proceeding the relator asks for an order directing the inspectors to reconvene and make a correct statement of the result of the canvass,- rejecting the unofficial ballots as void and returning said unofficial ballots which had been voted in a package, as required by the statute, instead of leaving them in the ballot boxand I have no doubt of the power and duty of the court in this proceeding to grant the order asked for in this respect.
Ever since the agitation in this State for a reform -of the ballot found response in the Saxton Law and in the later-legislative enactments on the subject, the courts' have recognized that the official ballot is the keystone of the new structure, and that the explicit prohibition upon the use of unofficial ballots, except in the instances allowed by the statute, must be enforced even if such enforcement in some cases results in the throwing out of the votes of honest citizens and the defeat of candidates favored by the majority, the greater interest of the people in the maintenance of the essential principles embodied in the reform measures being thus subserved. (People ex rel. Nichols v. Board of Canvassers, 129 N. Y. 395.)
It has been well said that in this proceeding the court cannot oust the defacto officers who are now serving, and induct the petitioner and his associates in their places. What the court' can do in this proceeding, and is bound to do, is to see that the inspectors of election follow the law and make proper certification of the result. The, persons who then appear to- have received a majority of the legal votes can assert their rights to their respective offices, as they may be advised, in some other form of proceeding.
The application for a writ,of mandamus is granted as to the inspectors, the form of the order to be settled on two days’ notice, to take effect as of December 3, 1906, and the relator .is allowed thirty dollars costs and disbursements.
See Laws of 1897, chap. 414, as amd.— Rep.
See Election Law (Laws of 1896, chap. 909), § 81.— [Rep.
See Laws of 1896, chap. 909, § 80, as amd. by Laws of 1897, chap. 609; Id. § 86, as amd. by Laws of 1905, chap. 643.— [Rep.