19 N.Y.S. 297 | N.Y. Sup. Ct. | 1892
This is an appeal from an order of the special term denying a motion made for a peremptory mandamus to compel the defendants to recount the votes cast for the various candidates for supervisor ata town meeting of the town of Milton, Saratoga county, held March 1, 1892, and directing that the ballots cast for Eben S. Lawrence for supervisor that were indorsed “Excise,” or posters attached to ballots marked “Excise,” cast for said Lawrence, be declared invalid, and directing said town board not to count such ballots, and directing said board to declare the results, and issue a certificate of election to the candidate having the greatest number of ballots cast for him, without counting said votes indorsed “Excise,” or posters attached to ballots indorsed “Excise.” There is some dispute as to the facts set forth in the moving papers, but there are enough uncontroverted to enable the court to dispose of the matter. The material facts are undisputed. At the town meeting in question, the relator, Frank J. Sherman, and one Eben S. Lawrence were competing candidates for the office of supervisor, and at such election there were four tickets,—two for.town officers, one headed by the relator, Sherman, and the other by Lawrence; and two excise tickets, containing the names of a candidate for excise commissioner on each. There were two ballot boxes, one marked “Town,” and the other marked “Excise." In the certificate of election signed by the board of town canvassers, Eben S. Lawrence is credited with having received 576 votes, and Frank J. Sherman with having received 571. Both parties aver that three ballots indorsed “Excise,” having pasted upon them paster ballots containing the names of Eben S. Lawrence and his associate candidates for town offices upon them, were found in the ballot box marked “Town,” and that such paster ballots were counted for said Lawrence for supervisor. It is also averred by both parties that similar paster ballots were found in the excise box, and that they were also counted for Lawrence. The relator, in his moving papers, alleges that there were five such paster ballots found in the excise box. The defendant alleges that there were found certain excise ballots with such paster ballots upon them in the excise box, but do not state.how many there were so found; and they distinctly state that the 576 votes credited to Lawrence included said paster ballots, and they do not deny that 5 such ballots were found in the excise box. The watchers present in the interest of the Sherman ticket objected to the counting of the paster ballots' pasted on the ballots indorsed “Excise,” and asked to have them preserved pursuant to the provisions of the ballot act. Such ballots were not preserved, but burned with the other ballots. Whether done ignorantly or willfully, the case must be treated as if
The board of canvassers and the court below seem to have fallen into error as to what is an official ballot under the law, and to have held that, because the ballot indorsed “Excise” was an official ballot, therefore a paster ballot for any officer or officers might be affixed to it. and counted, by virtue of the provisions of section 25, c. 262, Laws 1890, commonly known as the “BallotEeform Law,” or “Ballot Law.” The portions of that section pertinent to this question read as follows: “The voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. Any voter may take with him into the voting booth or compartment a printed ballot of his own selection or preparation, to be known as a ‘paster ballot,’ containing the names of all the offices to be filled, and of the candidates therefor for whom he desires to vote, which paster ballot may be gummed on the back thereof, and the voter may paste the whole of such paster ballot on any of the official ballots below the stub.” The permission to paste the paster ballot on any Official ballot, together with a misconception as t.o what is an official ballot, has evidently-caused the difficulty in this matter. Under the law of 1890 there were as many official ballots as there were tickets nominated, and in addition a blank ballot, but the candidates for all offices were to be on a single ballot ticket, the elector could only vote one ballot, and there was only one ballot box provided for to receive the voted ballots, and whe.n the statute said the voter could paste his paster ballot on any of the official ballots it simply meant any one of the ballots that should be printed for the legally nominated candidates, and also the blank ballot. So long as all officers to be voted for were to be voted for upon a single ballot, and only a single ballot could be voted, and there was only a single box to receive them, there was not much chance for misapprehensions. But in the year 1891 the law was amended so as to provide for an additional ballot and an additional ballot box, so that now we have two kinds of oflicial ballots, subdivided into as many more as there may be candidates or tickets legally placed in nomination. The law as amended must be so construed, if possible, as to preserve its spirit, and give effect toils intent. At town elections the elector can now vote two ballots; both must be, however, official ballots. This leads us to consider what is an official ballot. One of its essential features isa proper and legal indorsement, and a ballot not legally indorsed cannot be received or counted. Section 17 of the ballot law, among other things, provides as follows: “On the back of each ballot shall be printed, in type known as the‘great primer roman condensed capitals,’ the indorsement, ‘ Official Ballot for * * *,’ and after the word ‘ for ’ shall follow the designation of the polling place for which the ballot is prepared, the date of the election, and a fao simile of the signature of the county clerk. The ballot shall contain no caption or other indorsement, except as in this section provided. * * * Whenever candidates are to be voted for onlyby the voters of a particular district, town, village, city, or county, the names of such candidates shall not be printed on any other ballots than those provided for use in such district, town, village, city, or county, respectively.” In the year 1891 the ballot law was amended in various respects, among other things by adapting it to the election of town officers; prior to that Lime all officers were to be voted for on a single ballot. The law was so amended as to provide for a separate ballot for excise commissioner, and for two ballot boxes, whereas under the law of 1890 only one ballot box had been allowed. Section 27: “There shall be but one ballot box at each polling place for receiving all
It seems to me unnecessary to argue that an official excise ballot is not an official ballot for other town offices, and vice versa. In the Nichols Case, 129 N. Y. 395, 29 N. E.Rep. 327, the ballots rejected by the court were, in a sense, official ballots,—that is, they were properly indorsed if used in the proper district; but the official ballot for election district Eo. 1 was not the official ballot for election district Eo. 2. So the ballot indorsed “Excise” is an official ballot for the purpose of voting for excise commissioners, but is not an official ballot for the purpose of voting for other town officers; and a ballot with the names of candidates for town offices printed upon it, and indorsed “ Excise,” would not be legally indorsed under the law, and would not' be an' official town ballot within the meaningof the statute, and could not be legally icceived or counted by the inspectors, and the legal effect is not changed if the names of the candidates for town offices are printed on another piece of paper, and that paper pasted on the ballot indorsed “Excise.” To permit, this to be done would- open the door to fraud. The voter is entitled to vote the town ticket and the excise ticket. He could thus vote his choice for town officers, by means of the ballot indorsed “Town,” and puta paster for the same officers upon the excise ballot, and in that way vote twice for the same officers. It was attempted to answer this objection by saying that, both the excise and town ballots being numbered alike, the fraud would be detected. The learned counsel forgot that the numbers are on the stubs; that the stubs are torn from the ballots before they are deposited in the box, so that when the ballots come to be counted they have no numbers, so that the fraud could not be detected. If any voter voted both ballots the number in the box might overrun the poll list, but in drawing out to equalize the poll list the beneficiary of the fraud is no more likely to have the ballots cast for him drawn out than is the person injured by the fraud. The court below, in holding that these paster ballots should be counted, did so upon the theory that effect must be given to the intentions of the voter. The answer to that is containéd in the principal opinion in the Nichols Case, 129 N. Y. 401, 29 N. E. Rep. 330, as follows: “The right to vote secured to the citizen by the constitution must be exercised in the manner and subject to the regulations lawfully prescribed by the legislature, in respect to the time when and the method by which his will is expressed; and, in order to render his will and intention effectual at the election, he must comply with at least all substantial requirements of law. ” And again, at page 408,129 E. Y., and page 333, 29 E. E. Rep., the court says: “ The legislature has forbidden the elector to cast such a ballot. It has prohibited the Inspectors from placing it in the- box,
There is another reason why the paster ballots pasted upon the ballots marked “Excise,” and found in the town box, should not be counted. In the Nichols Case great stress was laid upon the fact that using ballots in one district indorsed for another district afforded a means of identifying the voters, destroyed the secrecy of the ballot, and opened the door for the corruption of the voters, thus nullifying the intention of the law, and that for those reasons the ballots should not be counted. So the use of ballots marked “Excise” to vote for town officers would afford an easy means of identification, and would nullify the law. If paster ballots can be received and counted under the circumstances disclosed in this case, then the provisions as to indorsement are of no effect. The word “excise” is not the legal, official indorsement of the ballot for town offices, nor the word “town” the legal, official indorsement for the excise ballot; and if the provisions of the statute as to not counting ballots not properly indorsed are to be enforced, then the paster ballots for town offices found upon the ballot indorsed “Excise” should not be counted. For these reasons the order of the court below should be reversed, and a peremptory mandamus issue, directing the defendants to recount the ballots cast for the office of supervisor, and to exclude from such count, and refrain from counting, the paster ballots found on the ballots marked “Excise;” and that they issue a certificate of election to the candidate for supervisor receiving the greatest number of ballots exclusive of ballots for super