People Ex Rel. Smith v. Pease

JUNE, 1863. .ALBANY, People Pease. The v. al., ex et rel. Smith Pease. People,

The quo a warranto to determine the title to an the trial of office Upon depend- the election, a is who received the most ing upon general ;> ' votes. are not but judicial, of elections administrative officers: inspectors rejecting' as receiving votes; their'decision is the final a vote, open voter was or was entitled 'to question whether subsequent proceedings any competent upon evidence. examination have no a inspectors authority reject the vote except seems expressly given by statute, where it is cases special when oath, to take the or to answer refuses questions, the voter stands con- made a crime, or has bet on election.

victed may voted, as a witness be asked for whom he and, called voter A state, unable to circumstantial evidence or is used to declines fact, may be asked for and he whom he intended- to vote, ascertain bearing question. one of circumstances showing person voted, poll-list kept at purpose For admissible, though signed by clerks, election heading its denoting character, having never having filed in ‘ clerk’s office. the town proved born, is- to have been alien and there ¡prima a voter Where facie he had not become citizen naturalization or other- that he has showing become citizen is the burden cast on the wise, to retain the desiring vote; and, absence such evidence, party is to be disallowed. the vote only that one had alien the evidence is was born, where But qualified is that he voted and had himself legally, presumption ' naturalization. the nature of a warranto, brought January, quo

Action title to the treasurer of office try county On of Lewis. action had been twice tried. county defendant set aside trial the obtained a verdict, which first Barb., and a trial ordered. (30 bill new on a exceptions, obtained a ver- trial the defendant On the second again in his favor, entered dict, judgment and from that affirmance term, ’general affirmed appeal. brought present the plaintiff IN CASES THE COURT OF APPEALS. People v.

(cid:127) on the second trial, certificate plaintiffs proved, of board canvassers of county Lewis, show- county in the result of the election that in general ing Novem- county ber, that number at that 1857, the whole election treasurer was thousand county office three for and of those votes hundred; four that The relator, Moses Smith, M. 1,683 received......................... Moses 2 Smith................................................ M. M. 17 Smith...............................................

1,702 The defendant, Pease, Biodate 1,691 received........................ B. Pease,.................................................. 3 Beas, Beodate ...............................................

1,698 also was that the relator had been resident proved Lewis for that in county during time had been twenty years, held offices as a had merchant; sheriff, business deputy sheriff his in that his treasurer; was county practice, and official his name M. M. business, Smith, private sign .and to advertise that the same name his business by name; on his was his at letters so ad- sign store, were usually testified him. old residents county dressed Several that county, well acquainted throughout M. heard of M. other than the relator. Smith, never this A motion for a nonsuit on was denied. The evidence then that he as a defendant was nominated candidate proved for the office of treasurer Lewis by county county county, in that in the fall of convention, voted county, for as at in the election Sd such, November, held him witnesses called was Peter year. Among for the who' testified that he defendant voted Eivinot, in election, at the second election district treasurer county in this Lewis On Bremen, cross-examination, New county. he was born testified that France. witness John-Kent defendant and testified was called behalf that he Constableville, voted said treasurer, at county

ALBANY, JUNE, 1863.

The- then asked question: that election. He county, ” at that treasurer election ? did For county whom vote you “ offered evidence, defendant, connection with that he for the relator, the witness voted show to this objected not a voter. plaintiff on the grounds: incompetent, be thus That a cannot interrogated.

1. voter be-so when the he cannot interrogated purpose 2. That and thus without a to do so, to establish or misdemeanor. a crime committed That the determination election

3. was final conclusive.

receive return of the the result of That the showing 4. inspectors, after the them, votes received was election, estimating the conclusive. for all vote, That the received, when- effectual

5. purposes, for the him for defence, against proceedings voter’s except voting. illegal That whose are to be affected

6. rights adju- persons dication are not to this that them- parties action, the voters is, selves.

The court objection, overruled counsel plaintiffs’ excepted.

The stated witness that he not for could whom say positively he but he it voted, was thought that Smith; and went he from Constableville 4, Oneida after Boonville, county, July Quite 1857. a number of for examined, witnesses were for their that voted showing, by purpose testimony, for relator, treasurer, voters. county With to some of to estab- regard tended them, testimony lish those facts. those Sebastian Hoch, witnesses was Among testified that who he born in was June, Germany, that naturalization claimed got never papers. plaintiffs his on this that law, state of was presumption facts, The court father was naturalized he whilst was minor.

ruled that the burden of him cast a citizen was now showing n plaintiffs; ruling excepted. plaintiffs CASES IN THE OF COURT APPEALS. ti. Pease. With to another regard that witness,' plaintiffs objected

. must be that he for the proved voted before relator, received of his could vote. objection incapacity and the was evidence was overruled, plaintiffs excepted, " received. he Thomas R Loftis testified that election, voted could not tell for he or of treasurer, whom voted county that it read that he ticket; him; whom was got and could not that he ticket, could not read, say opened time ticket at the he voted. He then he knew was “ did intend asked: ticket vote?” This was What you to, overruled, objected objection plaintiffs .and “ I answered: vote the designed witness excepted. I don’t as I doubt that know I ticket; any democratic I did not till know Smith this suit did; began; after him I did not names from cross now; know by sight my ticket.” testified,

Conrad Hoch that he for Smith county On cross-examina- 2,Ho. Croghan. in District treasurer, read the names on tion “I read English; nobody he.said: "of don’t whom I got it; I I know voted; the ticket that "isall I about know ticket; Smith’s name was said I kinds of tickets were I noticed two day; it; peddled I one called kind; believe democratic peddled all I about it.” The that is know moved ticket; plaintiffs out as be stricken hearsay testimony incompetent. and the denied, motion was plaintiff excepted. The that he voted, testified Constableville, Peter Bellinger for the before he treasurer; for the relator as year county Lawrence and in St. county Canada; resided Jefferson county, from to in he .1855, resided Lewis when county, that he in and 1856 he married at' to was St. Lawrence county, went his wife, in that that he lived with at Canton, . Canton, county; her that since; and had not four lived went months, to in Jeffer-' Watertown, and back Canton to Canada, got from from there to Constable- in son went June, 1857, county, ALBANY, JUNE, 1863. 49.

The yille that his latter still 1857; the wife July, remained part at Canton. defendant offered the

The list of poll District to that Bremen, show Francis 2,No. New L’Huillier, one had been the examined, witnesses who voted that district that claimed election, being at that residence inwas an that he alien. was Croghan, objected was that it did not that incompetent; prove plaintiffs no there witness was voted; heading, show what that was was; signed by paper that it election or been filed clerks; appeared June 15, to have come from was the clerk’s proved office. excepted. and the overruled, The objection plaintiffs The list of was received like Croghan (under poll objection show L’Huillier did not exception), town.

Several taken, the examination exceptions of other witnesses, similar to those questions presenting taken on the of Thomas examination R. and Conrad Loftis Hoch. on the

When testimony part defendant was counsel court to requested rule that closed, plaintiff’s had been sufficient to go jury over- proof conceded to the relator, majority come five and the denied, The given. request plaintiffs’ counsel excepted. called McRea as then William witness, plaintiffs that he him,

offered to the defendant: was prove had never been naturalized. The defendant alien, on the to this at the objected testimony, ground that, close reserved, testimony, plaintiffs’ permission certain witnesses court, call named, who were not then to show votes had been cast for present, illegal them. L and that called defendant; witness was not one claimed the plaintiffs give evidence offered strictly rebutting objection testimony. sustained, plaintiffs excepted. at one or more of the plaintiffs proved that, polls, Smith.—Yol. XHI. IN THE COURT APPEALS. CASES OF v. the name were circulated with voted,

democratic tickets on them for treasurer, defendant instead the. county name of relator. that must charged

The judge jury they inquire upon had most votes, which candidate evidence, had most To lawful this votes. plaintiffs’ Also must strike dis- that out and they counsel excepted. satisfied, the evidence, they allow all votes which men had not To vote. who lawful were given counsel this the excepted. plaintiffs’ ' if as -to he married went live That, got Bellinger, intent to make that his wife another with with county, of resi- that constituted a residence, fact change county To this the counsel excepted. dence. plaintiffs’ that also that when judge charged, was proved born, alien and there was evidence that was prima voter facie citizen or otherwise, naturalization had not become he the burden him must that out; be stricken given by To this voter. then cast was proving citizenship counsel excepted. plaintiffs’ n Bivinot, the case of to charge the'jury, refused judge the defendant and was found that he voted that naturalization, in the absence proof born, then, alien did that in such case disallowed; and charge, must be his vote he been To had naturalized. was legal presumption excepted. charge plaintiffs refusal court to counsel then requested charge, The plaintiffs’ born voted, alien presumption one who when that he one voter; he claiming was that he burden of never voter, showing a lawful could ways a citizen by any became refused to accordance The court charge admitted. stated whht was required so much the request be proved.

James appellant. F. Starbuck, Francis for the Kernan, respondent.

ALBANY,JUNE, 1863. v. Pease. People of trial, J. The and the judge, charge Davies, taken the main relator, exception by present in this and the one of action, only controversy importance It is far consideration. demanding certainly question determination, in the results which must its reaching follow for upon its decision must of just and the elec value depend purity tive franchise. reflect under the con that, When we present stitutional in this we not provisions State, prevailing only elect all of officers, most our legislative executive judicial, it administrative, cannot fail to be seen how it vital the success our institutions that the voice permanency thus be that of will those expressed constitutionally quali fied thus to It is of but little speak. moment that constitu as tional to the qualifications, exercise preliminary elec tive franchise, that those thus prescribed, entitled exer cise inestimable to right, freemen, no such persons having exercise the same qualifications and thus right, thwart and subvert of the legal will voters. Such could certainly the intent never have been of the framers of our system results, and such has not been government, heretofore sup were to be posed, from our elective anticipated system. section 5 of article 1 of

By the Constitution of the United States, each house declared to be the of the election judge returns and qualifications of its own members. A similar as to our provision, State is found in applicable legislature, the Constitution of this State. 10, art. And a like (§ in most if provision not all of the charters of the muni- various cipal corporations State will found, applicable the election of the members of the common councils thereof. n So far as I to discover, able the rule is universal in all legislative bodies, upon election inquiries members to scrutinize thereof, the voters qualifications deduct disallow all votes cast candidate any voters. This rule seems to be well established non-qualified in such and it is substantial reason cases, perceived can be a different rule should obtain a civil suggested why to determine of an suit proceeding individual OF APPEALS. CASES IN THE COURT This rule office. was distinctly recognized and

particular in the election affirmed House case Representatives Globe, 41, vol. Vallandigham Campbell. (Cong. p. extended debate had following.) all the conceded that the case, members or non illegal electors must be deducted or and the qualified disallowed; main of difference the discussion aswas to the man point ner of disqualification. contended establishing members that could by some shown oath others maintained himself, while voter hearsay such evidence of admissible. Numerous disqualification are cited at 2320, the precedents page fully doctrine sanctioning can be received. At evidence 2319, hearsay page case the where, election before committee cited, .was House Mr. Maule that the Commons, objected England, declara Nowlan were sit against one John tions since Lord Chancellor, Mr. now Thessiger, member. Lord, ting “ In the said: case it Southampton reply, Chelmsford, of the declaration of a even person, may held evidence tend to affect him con may penal though voting, after case the voter had stated to In the two Ripon sequences. of June and that he 1832, the months had no July, persons, tenant of the his the election took house; aunt was and vote, and declarations 1833, were held beginning place for A admissible. who has member sitting voter it is on that as a considered party, ground always con his declarations admissible. always to be voter his questioning sidered between party sitting=member between vote, merely that the The committee resolved evidence should petitioner.” be receivedii declares of this State who exercise

The Constitution may to at Those entitled vote election elective franchise. any who years citizen of twenty-one age .male are, every inhabitant of ten citizen days been a shall have and for election, any next preceding one year State where may resident of county months a four last JUNE, ALBANY, 1863.

The People that none others than 1, offer his art. follows (§ vote. 2.) those these can vote. possessing qualifications lawfully All votes are to be and offered to the ballot, inspectors ' on the it is election, made, statute, election, day each to inspector challenge offering duty every person to he shall not to be know vote, duly quali whom suspect 433, fied as an elector. 5th And (1 Stat., ed., Rev. p. § that in section same declares case 41, page, any inspector election shall or suffer knowingly willfully permit any who entitled election, vote is not person vote thereat, the said so is to be inspector offending, conviction, of a misdemeanor. If a adjudged guilty person offering it is made the challenged, duty inspectors administer to the oath voter preliminary prescribed by .the and to such voter tend statute, questions put his and if shall refuse to to show take vote; any person toor oath, answer fully any questions preliminary his vote shall be to'him, Stat., shall be Rev. rejected. put If the to vote ed., offering 5th p. 18-20.) person §§ shall vote, in his claim after the shall persist out to him vote shall wherein appear pointed shall then, deficient, them is not inspector challenge oath set forth in administer withdrawn, general statute. to be the taken, is refused is to be

If the oath vote rejected. 21, 22, 430, 431, 24.)

(Id., pp. §§ that the therefore, have seen, inspectors authority, to statute, reject vote, after the except three cases: take refusal to or to preliminary oath, answer any fully or on refusal to take And oath. questions put, general discretion judicial them is to determine vested has whether to vote any question put persons offering has not been or answered. If the have been fully questions put and such answered, answers that the discover the fact fully to is not offering if he person qualified voter, yet- per- in his sists claim to it is vote, imperative upon to administer to him and to general oath, taken, receive the vote and the same in the ballot box. These are deposit QF THE COURT APPEALS. CASES IN to legislature

all safeguards thought proper pro- insure the of fraudulent or to illegal voting, vide prevention to but-little discretion the Their duties,- this inspectors. leaves are instance adverted minis- to, single simply except so in votes, of the counting terial entirely reception thereof. The have left those returns legislature and making of and election the return bodies judge having power to correct abuses which members, of their own any and to election, in such judicial investigation, have resulted concerned affected, of individuals are legal rights where such remedies as the nature of the case calls for. to apply in the nature of a war- law, An action quo prescribed by of of the as well ranto, determine, usurpation as the claim of office person asserting person this the determination well action, thereto. disposes-as as the It is not of so interest right. private public as the is concerned, so far much public importance, office; the duties of an shall discharge two claimants to the fees and of an individual emolu- private right the subject ments of an office is legitimately properly this adjudicate .upon right, of judicial cognizance, to determine who was it becomes essential legally duly entitled to and who its it, discharge elected or appointed its fees and emoluments. The and enjoy duties receive action, in reference to the Code, ample provisions of the public the interests well secure, cover The determination those rights parties. private into the title investigation leads rights necessarily and such office, investigation claimant to the particular election in a legality must result determination one or of the other. appointment canvassers, It-is made the of the board county duty determine what person, the statement votes given, by the. office, elected to has been votes, duly number greatest Stat., ed., 5th in said statement. Rev. p. mentioned counties,of this of the several State treasurers County § hold their officefor election at a are to be elected general 55 JUNE, ALBANY, 1863. «. Pease.

The People the certificate And 406, 17.) three (Id. p. years. § the votes given canvass authorized board canvassers election of made evidence per office, elective any elected. (Id., p. 22.) declared to have son therein § title prima certificate is But such facie therein the office mentioned. it, receiving of the person warranto, or an quo cases the proceeding In all where that such is held is insti proceeding of that action nature, office it is to the directly, compe tuted to try which certificate, otherwise be tent behind go real facts of the case. (The ascertain the People conclusive, Denio, 5 Seaman, 409; v. 8 People Cow., v. Ferguson, 102; Slych, id., 297; v. Van Vail, v. People Wend., “ last case, J., Such says: proceeding Bronson, those evidences of reaches title beyond conclusive other into and purpose, inquires ascertains the “ also He right.” abstract In those says: legisla bodies which have the tive of their power own mem judge it is settled when the bers, practice, sitting, is called in to look member certificate of question, beyond and I think a court returning officer; with better jury, the same truth, at- course." pursue means arriving may it is But while conceded that is to ascertain this proceeding office," to the very right person particular means of it or fraud of mistake any negligence, inspec their be corrected, tors canvassers yet proceedings and allowed contended, received "tovote, to a party, given by persons qualified is final and conclusive, thereby party proceeding elected, by of an office to he was having defrauded duly has votes, number of greatest qualified received but must to the loss of submit, well the office remedy, the fees and as of emoluments out it. I cannot growing to such a is it that confers title What assent proposition. «its emolu and the

the office, reception legal right number is the fact It surely greatest ments? declared election so their voters have wishes

qualified CASES IN THE COURT OF APPEALS. v. Pease. People (cid:127) held law. pursuant not the or canvass, or estimate, certificate determines the These are evi- right. dences of the but the truth and into, right, may inquired the ascertained. it is When so the very right ascertained, follow the the legal consequences office person usurping entitled ousted, .the takes the office and its legally person from the fees, the &c., recovers usurper fees emoluments received office, the belonging by him, means of by term of If the the thereof. office have should usurpation final of determination fol- before- it question, expired lows that cannot take the successful he office, but party the fees will be none the less entitled to recover and emolu- he ments entitled, which was legally been may received claimant. can a by How, usurping person fees, &c., votes deprived persons by qualified to cast them ? It that the statement of the would seem propo- its sition furnishes own answer. The Constitution prescribes it is who needless that none others can vote, say But fraud if, inadvertence, do so. or mis- through lawfully no so votes taken persons having right take, and he is and counted for candidate, particular thereupon, such to him, reason votes declared by counting allowing elected to a and enters office, given discharge duly and receives fees emoluments duties, its pertaining can votes to the claim of thereto, interpose illegal number of elected greatest legal person rightfully by he make title to the office voters ? Can the votes qualified by of those no or constitutional who have vote—in legal other words, wishes those voters ? my opinion, not. The office determined clearly very number fact, whom was the greatest duly quali- fied Or ? that instead suppose voting having ballot, had been viva relator voce, for for 1,702 him, present persons declaring county case and of those defendant 1,698, declaring and the treasurer, on the trial that fifteen ten, relator conclusively appeared for him women, thus minors those declaring or. twenty ALBANY, JUNE, 1863. and thus not and that all aliens, voters, those declaring defendant could voters, possessed legal qualifications

there be a moment’s doubt as to entitled to which was legally I do not the office? see there and the case could, supposed under substance, now consideration. can those is, How at an who have interfere with or be heard legal right election, and deprive legal voters their qualified legitimate or the choice, elected them to an person duly of its by office, and emoluments ? A is vote but the advantages expression of a whether the voter; will formula to give express- ion to such be a ballot or viva voce, will the result is the same: It is a either a vote. a can be paradox say given one not a and as it is the voter, number of by greatest votes elects a candidate and title to the gives office, follows that those ballots or handed in logically not, given by persons are not votes, voters and cannot, be therefore, esti- rightfully mated or have influence the result. there Ordinarily would be or great difficulty separating ascertaining are no ballots which have legal validity whatever, being But in the non-voters. case at bar it given by ascer- clearly tained that five ballots votes given counted for the relator were cast not given by persons vote, qualified in truth and he and in consequently, fact, five votes less been counted and than allowed to have him. They must, from the therefore, subtracted vote allowed to total; him, him such subtraction leaves a less number of votes than for the defendant. the case People v. In Van (supra), Slyck arguendo, Jones, “To make a choice of the defendant says: within provi there should be statute, sions majority votes seems and such be the evidently view court. needs or illustration to argument

hardly show the votes, the framers of by contemplated Constitution and by legislature, declaring person num having greatest should be ber votes elected and entitled to the particular meant office, thereby legal votes, those those cast only possessing voters constitutional qualifications. my Smith.—Yol. XIII. CASES THE IN COURT OE APPEALS. v. ballots cast-

opinion, by females,'minors,- or those not aliens, constitutional having qualifications, votes within intent our Constitution meaning and election laws. Quo Cole Warranto anumber of citing cases, (p.110), English down these lays which harmonize with propositions, views He that the already suggested. says party may “ ”(cid:127) elected. duly This-may he was happen, although qualified elected, the election itself was neither nor void irregu lar, as when he did not obtain legal votes. majority roll of a burgess to vote' prima party’s-right facie at an election. can burgess, Indeed, put- him as his to his vote, but signature delivered in voting and his him, identity paper has roll, named and whether he burgess already person voted at that election. But the roll is not conclusive burgess toas the voter’s title, for a warranto application quo information the rela against elected, and, "therefore, party tor show affidavit that had a the defendant although colorable election, that certain of majority yet the. bad for ones, such reasons, that, deducting specified bad votes, relator some other candidate had the majority of votes. So it legal be shown that some of voting may for the defendant were defective and papers insufficient, defendant had not of them deducting legal a majority in the case of Rex v. votes. The same doctrine enunciated a where Vice Chancellor, &c., Cambridge Burr., 1647), into mandamus was awarded to the Earl Hardwiclce put the office of Steward of the High Cambridge, University on the him, one the votes ground given against not tie, a a vote, having cast person an produced illegal to be. -the to vote. The the vote declared right proctors dis after election. Lord and, therefore, equal, Mansfield, had been of Mr. vote cussing whose qualifications Pitt, a the Earl of Hardwicke, and given against thereby produced voter; tie, arrived that he not a legal conclusion is. Hard he there a of one for Lord so, majority says, unless the side those who. wicke, can some other disqualify JUNE, ALBANY, 1863: Pease". further declaration of the He “The for him. says: the substantial right. right cannot affect proctors to be in Lord am and I Hardwicke, election appears very that the foundation of the rule election.” clear should “ As to said: the declaration proctors, Justice Wilmot not think it immaterial, that, I upon depends, j real This declaration but votes. legal upon majority declaration, cannot alter or affect that. If had made a they if such their declaration had even been contrary of the fair and taken truth real the court must have right, up the matter the true and real merits; upon in Lord officeattached Hardwicke, having majority If he had a real votes. this court right, give ought and the omissionof declaration of it; activity proctors, or the cannot affect their it, judgment falsity concerning “Lord Hard- Therefore, adds, the'legality right.” had the of legal wicke votes.” majority

We from the authorities and seen, cases that the cited, when a universal, instituted to determine practice scrutiny to an office bodies, all by legislative reject or cast given by persons vote; duly qualified the declarations of the investigation, person casting vote have been admitted and received evidence of his quali fication or want of It is qualification. evidence, hearsay well-settled uniform has yet, upon been allowed. practice, note The learned 3 McCord’s Reports (p. 230), hearsay evidence, announces He doctrine. under distinctly says, the declaration of head, 23d a voter aside

to set as to diminish the election; poll, by taking off, or but incompetent &c., prove bribery, admissible on charge against candidate for &c. bribery, are admitted to aside, annul They votes, not to set the elec tion the by member disqualifying account his bribery, &c. the case of Milborne (Citing Port, 67; 1 Election Doug. Cases, Case Joel 1 Chester, id., 76; Case, 3 id., 6; Worcester Petersfield Case, 3 id., 129; Shaftsbury Case, id., This doctrine referred to in

ALBANY, 61 1863. JUNE, v. Pease. People boxes, behind ballot that a could go principle most be Chief Justice would dangerous tendency. Savage most said that an election object correctly number of votes in his greatest person receiving favor shall have the office designated electors; not assent net look could proposition you boxes for the danger the ballot because of testimony, beyond - subornation lie considered of perjury perjury, a and to like all other before jury, fairly proved, ad- the nature of the case best evidence that facts, by of. mits " much are with- the that it would argument We pressed if inconvenience we a attended great permit party an office that his by showing adversary try right than number the ascertained illegal a greater received is said that a election him. It general-State majority given in such trial consume might the time necessarily occupied first I time more than have ever eighty-three years. it that a had conceded should heard who party urged to enforce a large because it, not have remedy consumption before his could be established. time take would place to an can be office, has a title surely legal If a party him the establish it, opportunity denying. reason of a number of the examination large require such process,will time in much Eights and consume proceeding. witnesses such a basis. The case of be determined cannot of parties examination into Cambridge required quali v. Rex entertained the Court of and was voter, of one fication Ex not for that reason. parte Bench, Murphy King’s votes, two and it illegal an Cow., involved inquiry 153) entertained, influenced clearly case of v. Cook(14 election. The People Barb., result into the title involved Seld., inquiry S. 259; C., 67) State who had been Treasurer, to the office of contestant I do not find it election. State urged at a general entertained, action on the ought that case that the time which was great length of inconvenience ground n CASES IN THE COURT OF APPEALS. The views

occupied investigation. expressed by Judge in this in the case of The court, Cook People v. Willard, should be adhered to. He sound, (supra), “We says: are not called that upon-to say every possible question arising under the election law may corrected this It is way. that the enough contained in The principle Ferguson v. People sustains the court below. That case has stood ruling of more than a aof scrutiny has quarter century, neither been disturbed new Constitution nor by repeated revision of the election law. I see nothing case present us to from requires it.” He depart adds, and what he is as to the says case as the applicable present one then “ under consideration: Nor is there to be any danger appre hended to our institutions security by pursuing prac office is no tice. than higher life, or There is no liberty that should property. withdraw principle the first from the of a court and to the cognizance exclusion jury, of the Both will, last. be safe indeed, under the administra of the tion tribunals.” ordinary think, We therefore, charge at the that it circuit, was to be judge determined upon adduced which candidate had the evidence the most lawful and if found that votes, had they defendant the greatest votes, then he office, number to the was entitled should be in his verdict and that favor, their was correct, on that should not be motion disturbed. The ground verdict out the of Conrad Hoch to strike was testimony properly was for the from the denied. It whole jury say, testimony, his had relator. whether, in been He fact, and, on cross- that he Smith, stated voted unequivocally it was said Smith’s name was on examination, he testified that for the all he knew about it. was ticket; jury was or all related whether him, from circumstances say, are to assume that not he for the relator. voted We to the he taken refusal believed did. objections cannot, we motion to strike out the Shoat testimony think^ did know witness had testified that he sustained. The stated other matters not for Smith, whether ALBANY, JUNE, 1863. immaterial. The other him be regarded wholly do not seem to call for further observation.

exceptions us correct in that the It seems was judge stating that a man alien that when was was born, proven jury he had never been naturalized, there was prima proof facie him must be citizen, became vote given or otherwise and the burden was either out; proving citizenship striken If or-the vote to be legal. the voter party claiming herein then this sound, views expressed charge So correct in charge part unexceptionable. Eivinot, who testified that he relation witness was born and had there was no voted, evidence France, tending to show that he ever been naturalized. in tha The-judge that the was that he had case legal presumption charged made when given, Ho suggestion naturalized. that he had not on the been stand, was the witness naturalized. that he had was voted, presumption hadHe as not for the court matter of that say, law, was It legally. this state of facts, the presumption was illegal. vote not that he had voter, committed a he was a asked, the court have been the same might ground On crime. his be excluded born, native vote had stated was if he of he had attained age twenty-one proven because be that he had would The legally legal presumption years. of until some facts voting, appeared exercised privilege raise a contrary presumption. would from should be affirmed with costs. appealed The judgment like action action, warranto, This quo J. Selden, information the nature of war quo r the proceeding is in the exercise of the duties the defendant anto, where of his exercise those right involves office, rests him to establish and the burden proof duties, “ trial right party his right. Quo Warranto, Cow., Cole (4 323; the office.” 221.) holding relator is a claimant of the case, as in the present Where, his the trial also action, involves office, party, CASES IN THE COURT OF APPEALS. as the defendant. right well (Code Procedure, 436 2; Kern., 433; Barb., 373.) § at the commencement of assumed, have appears the trial in this had a title the defendant case, prima fade to the office, took the initiative plaintiffs disprove and establish that of the relator. evidence produced in the absence sufficient, plaintiffs unquestionably of further for that to well-settled According proof, purpose. the board of erred in to allow rules, canvassers refusing relator the Smith, nineteen votes Moses M. M. given to his vote, the addition Smith, which, unquestioned after him the defendant, four over adding majority given one for D. Pease, to his the three votes last and five mentioned vote Beas; Deodate majority for the about defendant, not counted propriety Cow., 102 5; Denio, be some which there might question. must be decisive favor state facts plaintiffs, This behalf is that it is sound, their if the taken position in trials court, warranto, for the upon quo go competent into the box, qualifications the ballot inquire behind been received. ballots have whose voters which this attempted first ground upon position elections judicial officers, is, be sustained ballots of final and voters are in receiving decisions whose conclusive. has been touched previous far the subject upon by

So to sustain posi found little nothing there is decisions, In the it cannot be sustained. tion, and I am satisfied Lord (2 in White Ray., celebrated v. case, England, Ashby decided as Cases, finally 1 Bro. 1st Par. 938; ed.), our having inspectors House of officers Lords, powers combined and boards of canvassers election county in elec not judicially, holding held to act ministerially, tions and return of the votes. making it action is said that an In Prius 64), Buller’s Hisi (p. “ a ministerial office misbehavior in the ease lies for a willful 65 JUNE, 1863. ALBANY, The People who a one as damnified, denying poll is the party (such office bridge-master), elective candidate

stands that he would in the declaration be averred need it taken. So refusing' if had been chosen poll have him for not who So returning at an election. take 1 2 Vent., 55; Liv., 55.) (Referring chosen.” is duly is John., (11 114), principle Jenkins Waldron In v. are minis in this State, of election, that inspectors

recognized that case The action against inspectors officers. terial held to be the defendants were judicial not because failed, acted with it not shown they because was but officers, action civil officers, had acted as If judicial they malice. malice. with them, charged lain against have even

would . 1 24; Salk., 396, Co., (12 ) 397 Wend., & R. Co.(23 v. B. Turnpike People the case is “The office merely J., says: inspectors 228), Cowen, defined well circumstances, a course On given ministerial. are bound to or count receive statute, constitution they of election. no more certificates They give

votes real estate exe than sheriff discretion disposing (Ex Seaman, v. 5 Hill, 47; Heath, cution.” parte Denio, 411.) officers, of election are judicial inspectors position act too much for case. If plaintiffs’ they prove also act in count- votes, receiving they judicially

judicially If result. their them, act declaring certifying ing is conclusive the one case, other; conclusive their must rest contented reports, which, plaintiffs number of combined, defendant. gave greatest some but to decide are required questions, Inspectors often officers are decide. A ministerial required must decide whether deed, before clerk, recording county his decision is legally proved acknowledged, whom must decide person sheriff whether conclusive; but his in his decision is the described process, arrests person and he acts at his (6 Cow., not judicial, peril. section 20 S.,R. 5th ed., Under 430), Smith.—Von. XIII. ' APPEALS. OF THE COURT IN CASES-

66

. The v: Pease. People has or his to decide vote offering whether person required to him,' not refused to answer all has fully questions put refusal; on the of his can ground before vote reject they must is “a decide voter 23, under section whether(cid:127) they ” oath shall before determine what man or nqt, they colored must section 28 administered to under him; (p. 431), they be before of conviction, record decide sufficiency his con- of one on the challenged ground vote rejecting if must and pass of a crime, produced, pardon viction under .the genuineness sufficiency pardon; (cid:127) required they may sections 2 and (pp. 433), or on the ’result of the á bet wager decide constitutes what one chal- vote rejecting before election, receiving sections. In these cases those under" lenged their deci to decide important questions, required that of deter are made, for the sions, they purpose are be received or rejected, the votes shall whether mining think I do not final; they regard but conclusive votes, an when presented the legality elected the right instituted try persons action properly of their decisions. defeated, the result They to office, — receive no oral can testimony call witnesses cannot and no evidence, of the voter, the oath documentary excepting conviction crime. alleged is based on unless challenge more of the occasion absolutely preclude any The necessities and irre- demand an immediate thorough investigation, In one this the respect For law decision. provides. vocable that the that is, conclusive, the decision is final and of the intention view or rejected; my shall received for more of the statutes is leaves correct, question open had or whether voter deliberate adjudication interests often these Great depend upon ques- vote. -right and it the foundation of the government, lie at tions. They the means of detecting of the utmost importance should error, fraud and correcting imposition, exposing ulti- as to the confidence be such secure people of. n "mate result of elections. JUNE, ALBANY, 1863. in

If, be conceded those cases however, that, where special to or express authority reject receive inspectors act votes, it does follow that their they judicial judicially, extends if power not, to other cases. does certainly they them discretion in the have committed to no to regard recep tion of other have no such discre votes. my opinion, they the of the cases to which reference has tion. With exception his made, the vote refuses to viz., offering where person take or final or refuses to oath; preliminary appropriate all ; answer to him the fully questions put by inspectors or has been or or crime; convicted infamous bribery, any has of is interested a bet or on the result of made, in, wager the election, there is no to authority given express inspec tors to and I it as clear reject vote, any regard entirely no such The have they in authority. authority given express cases to those seem exclude the idea of a special general all authority cases. course implied embracing required be, to statute, where by pursued any person to cannot be vote reconciled with discre challenged, R. tionary rejection vested power S., inspectors. ed., 5th are, to p. first, 18-24.) inspectors §§ “ what is called administer the preliminary oath,” requiring, the vote to offering answer as shall person questions him his of residence and put touching place qualifica tions elector. statute then mentions several ques tions are to be addressed him the inspectors, authorizes such other questions tend to test his may quali If fications as he voter. refuses to take the or oath, answer his is to vote if fully, he answers rejected; fully,. are him required out to inspectors point qualifica if he tions, shall any, to them If appear deficient.

he still in his persists vote, and the is not challenge withdrawn, are to administer to inspectors required him oath, which general he states in detail, and swears he all the possesses, qualifications which the Constitution and laws the voter to If require he possess. refuses to take the his shall oath, vote Is rejected. not the inference irresisti- IN CASES THE OF APPEALS. COURT v. Pease. takes the

ble, that, he his oath, vote shall be-received If ? is to be vote after rejected takes oath, why As I before ? construe the reject statutes, discretion left them in such a case (where per son not shown a record have been offering or crime, convicted his own oath to be interested bet but must the ballot upon election), box, deposit whatever know of the want they believe qualifica tions of the voter. to act the evi required They dence which the statute have no prescribes, judicial power truth of its or falsehood; nor can pass upon act their own knowledge. opinion of confirms this Another section the statute con strongly “ clusion. section follows: Section It That 36. provides to be of each shall the challenge every duty inspector person to to he shall know or not be vote, whom offering suspect duly as an elector.” It is this evident, section, from qualified no has to even when he reject vote, inspector power it not to His is knows the be a offering voter. duty person to submit examina voter by requiring discharged to take the oath statute tion, prescribes. In the without reference to insisted, second is place, examination of the decisions of the only inspectors, is is that which is the voter of permitted, qualifications is his ballot be made before received. or may of this is An of some force favor argument position not that the courts it does the fact derived from appear actions like the the trial of present, of this State, upon of of the qualification investigation entered ever upon balanced is substantially This argument voters. unless in a so, do courts to refusal of the absence any not which has been reported. at circuit case single the action returning against favor absence precedents in the v. White Ashby case urged strongly officers very House Lords, in the the argument upon especially (supra), the kindred do not think argu and I did prevail, case. in this much consideration is entitled to ment ALBANY, JUNE, 1863. v. is kind, cases be ren judgment, required “

dered of and also right defendant, to be entitled to rights the office. party alleged (Code, As was said in the case of J., by Bronson, Vail § Wend., action “reaches those 16), evidences beyond title which are conclusive other every purpose, inquires into and ascertains the abstract question right." greatest number of lawful votes alone to an gives right elective office in this no State; can adjudication had to deter mine the lawfulness of votes before are received, that they must be courts open examination by afterwards, there is no power anywhere government discrimi those which are those nate lawful and which are between if the rule Indeed, unlawful. contended for plaintiffs the distinction lawful and between unlawful adopted, when ballot exist reach the box. This ceases objec is not answered tion statutes referring evi requiring dence of the his voter, vote can be received. before is is when only challenged that evi any dence and there is room for frauds to required, great as well to as to render them challenges prevent practiced, ineffectual made. The when required any is the oath of the case person vote, contra offering diction of which nor there allowed, power (if courts do oath the possess deny effect it), and truthful honest one who hears testimony, although every it it to be false and know fraudulent. Neither is it may answer to the as the offender punished, say may gov ernment, if that were the no means would have only remedy, of of defence the direct results fraud. I am against in of such vital believe matter unwilling that, importance is thus officers, the of all its the choice elective State in not existence to assault. act was exposed registry took the election in it when now question place; been, would have changed aspect present in from is, Its effect this require question. respect con- oaths the oath instead of making equally two one, voter IN CASES THE COURT OF APPEALS. v. in of fur- each case. ch. (Laws 1859, 380, elusive 5.)§ of frauds nishes additional the commission against safeguards at in of.offend- elections, aid securing may punishment ers, but it furnishes of no means the government protecting of such frauds, therefore leaves ugainst consequences it stood before. where present question precisely of of nature, on trials this legality England, in as it is this coun is certainly votes always open inquiry, of suits the election of officers involving corpo try private Quo on & Ames Warranto, rations. on 146-221; Ang. (Cole Wend., Cow., ch. 79; 153; Corporations, 635.) § narrow limits within which suffrage comparatively in that of courts is confined decisions England deprive much of the influence "which upon question, country, and the due them other questions; justly upon less are still applicable cases directly decisions corporation under Those show cases, however, consideration. is as a not, is in to an office- the right controversy, where the number votes rule, determined conclusively general but the further the claimant have received, ques may which for consideration. tion, legal, open whether it is when judg presented, Without deciding ” “ rendered parties ment cannot be (Code, the statute requires. § to elections to Congress,

In contests regard legality number, has been a sub- as their votes, always as well the Law and Practice Legis- ject (Cushing inquiry and “I think court Assemblies, jury, lative 198); § better, same means arriving truth, may pursue course.” (20 Wend., 14.) it' arise inconvenience may supposed

trial of such from the number witnesses great questions, in trials State relating required, especially n has not be officers, been relied as a reason it should why held that courts boxes, can behind ballot try pass determine whose votes may voters qualifications This certainly argument received rejected.

ALBANY, JUNE, 1863. v. Pease. without as cases force, may readily where imagined any- entitled to thing tiie name of a trial of issues legitimate which such an action would be might present literally impos- sible but ; as I believing, do, statutes have unques- left this to the courts, no tionably duty inconvenience which could be would courts in anticipated dis- justify to declining as far as charge duty possible. past experience has not government been such as to induce the court to much heed to this pay from very argument inconvenience. far

So as the books of there has reports show, been no case in the State, to where prior this, has question been pre- and this sented, does not to have appear involved such a num- ber of issues, required examination such a number witnesses, as render the of such prospect trials alarming. But if this were otherwise, remedy belong legislature not to the courts. A rule of pleading requir- ing the votes parties specify objected to, the grounds .of objection, a rule of practice requiring exchange notices to the same and the effect, limitation of the parties their cases proof so grounds as is specified, to contested practice England regard elec- parliamentary far to tions, would go remove if it should be difficulty found to on the (Roe exist. Law 3, ch. Elections, part A similar where elections practice adopted Congress are contested. Stat. (9 Large, 568, 1; Dig., Brightley’s 254, § and note 14, a.) § decided conclusion, that the

My therefore, is, judge correctly at the trial, admissible show that and counted for either received parties were given by electors. who were qualified persons

There no error in the ruling judge, voters be asked the for whom voted. The might that under grounds objection been, our appear indeed allows, of elections, which requires, secret system it is not R. ballot, ed., 5th S., 7,) proper compel § and that voted; disclose where the voter whom is to that he show object illegally, was, therefore,

72 CASES IN THE COURT OF APPEALS. v. Pease.

The of a he misdemeanor, not be guilty should required possibly to establish his to It is a suffi- give tending guilt. to these that objections, cient answer are available they only to the and not to the witness, to the last party. regard there is the further (the answer witness admit- ground, having that an ted he answer for whom voted), question, no his could or he-voted, bearing have innocence. guilt in The to order of the facts objections proof be introduced, the exercise of involved discretion should on in such merely, part judge, not, eases, on reviewable appeal.

When a voter refuses to or fails disclose, to remember, he I think it voted, whom resort to circum- competent stantial raise evidence, to to that fact. presumption regard is the Such established rule in election cases before legislative committees, which assume to be rules governed by of evidence Law Practice Assem- (Cushing’s Legislative blies, 199, and within that rule it was in con- 210); proper, §§ nection the other with circumstances stated the witness, to ask him for he Loftis, whom intended to vote; how- not, ever, on the as ground intention, fact, independent material, could was a ground circumstance to raise did tending vote. The whom presumption refusal strike Hoch out Conrad involved testimony same principle. lists The Bremen and New were poll Croghan rightfully admitted. fact in them which was regard established admission as evi- requisite to authorize their dence to have viz., been were appears undisputed, lists these towns or at the election poll districts, kept statute such lists provisions relative question. must be regarded, 290, mainly, only (14 Barb., directory Seld., 291; failure to 89); any comply pro- lists their vision's, not actually kept, justify- n offered There when evidence. does rejection, appear, material the direc- from however, departure of the statute in lists. Neither a keeping heading tions ALBANY, JUNE, 1863. People nor the was, signatures the paper

show what ed., 432, S., 34; 5th (1 R. clerks, required. § § lists was so moment, one filing anterior What the lists its unquestioned. genuineness long could failed considered prove, deciding proved the question admissibility. of their offered defendant to

There sufficient evidence asked for the ruling, plaintiffs’ justify refusal “ suffi- been the that no counsel, go jury proof the relator,” cient to conceded to the five majority overcome could not be understood votes judge given. that the the majority, was sufficient overcome ruling proof but it to be submitted to the for that was-suffieient only jury their consideration as to its effect.

The refusal the examination of the witness, McRea, to allow dis- to the under the circumstances defendant’s reply proof, closed in on exercise of discretion case, only presented of the not to be reviewed here. part judge, ought If there had been no made on the arrangement subject close of the testimony, plaintiff’s opening as a would admissible in matter have been reply, offered furnished good its would have right, rejection ground reservation, approba- But the new trial. express the close of defend- to.call (at tion court, certain understand ant’s as I the arrangement) testimony, of showing “for the named, witnesses who were purpose defendant,” had been cast at said election illegal those as restricting plaintiff might regarded properly the facts although on that subject, witnesses only, reply reply, offered to have been proper would proved if no arrangement witnesses, have might proved by any attempted course that the had been made. apparent have if allowed, operated might, be pursued by plaintiffs in whose pre- The judge, the defendant. as a surprise upon better much qualified made, was arrangement sence be. court can than to do so, whether was decide, likely XIII. Smith.—Vol. CASES IK THE COURT OF APPEALS. v. Pease. had the effect to arrangement what change, otherwise been a into question right, one of discretion.

The two first to the exceptions charge present question, considered, whether the already qualifications voters could be into on the inquired trial, and, therefore, no further require notice. in relation to charge of residence of Bel- change was-too

linger, correct to clearly comment. require (4 Cow., 516, note 2; Westlake Private International Law, 36.)

Ho doubt can arise in regard correctness charge, where was that a proved voter was alien born, and there was prima evidence that he had not become a facie citizen naturalization or the vote otherwise, him given by must be unless rejected, of his proof citizenship produced.

The refusal to charge case that if the Bivinot, jury found that he anwas alien then, in born, absence proof naturalization, vote must be and the disallowed; that in such charge, case the legal that he presumption had been naturalized, presents greater difficulty. As a rule general affirmative facts are not to be presumed, must be them. There proved by party asserting are, some however, this and the rule, exceptions question pre- sented this is, whether case falls part charge of those within I am of that it does, exceptions. opinion was correct. charge “ in his Greenleaf, work on Evidence, Where says: a negative involves of criminal of allegation charge neglect whether official or duty, otherwise, or the fraud, wrongful violation of actual lawful possession property, party must in making these cases the allegation it; prove which is in of innocence presumption law, favor always quiet Green possession, favor charged.” party leaf on Ev., involved, in this case 80.) request-to charge § on the than a criminal more part Bivinot, something naturalization, neglect fraud. If he voted without duty, ed., 449, act S., constituted a misdemeanor. 5th (1R. § strong less crime cannot against presumption positive 75 . ALBANY, JUNE, 1863. v. fraud or criminal neglect than the against of. presumption therefore, which was involved The negative, duty. to be could presupied, required request,

plaintiffs’ it. East (Williams India Co., v. proved by party alleging Powel Hawkins, 10 v. East., 199; King Id., 216; v. ) 2 W. Milbank, Bl., 851. no I can difference between case and perceive present one on residence. where the case depends of the Commonwealthv. the defendant (9 Metc., 268), Bradford was indicted convicted at the election voting general in Boston the 11th of November, 1844, when, was not a he was voter, resided in alleged, qualified having months Boston the six next that election. preceding that the defendant at resided until about the proved Kingston first of he went to 1844, when entered into April, Boston* there with the that he partnership express understanding should make that his residence: that he place continued in until the Boston with occasional election, returns Kingston, his remained until short where time before the family elec to Boston. removed There was tion, when they conflicting to his evidence as declarations and intentions his respecting trial, judge, domicil. charged jury that, “the defendant’s was at- .domicil until he Kingston, acquired one the burden of Boston, city proof him jury satisfy affirmatively, beyond reasonable on the 11th doubt, 1844, he day May, changed from domicil and then Kingston Boston, dwelt and had in that his home Chief Justice city.” delivering Shaw, Court Supreme said: opinion “The point, court are that this direction opinion and that wrong, the burden was still on the .proof government, prove that the defendant had to vote, and that he had not ' an inhabitant six it is months. This, city true, difficult to hut negative proposition, prove, necessary order party a criminal charge I On that ground the offence was set aside. cases the conviction in presumption of innocence favor overcomes which would presumption, ' IN CASES THE COURT OF APPEALS.

The otherwise arise, non-existence of the fact not proved. To rebut such counter stronger some presumption, posi tive evidence to negative necessary. What establish that should be, must on the nature of the depend case. (Calder v. Rutherford, 3 B. & B., 302; Phil. C. & Ev., H. ed., 196.) in negative to naturalization regard would ordinarily more much than would in prove regard difficult but the residence, of both cases principle same. (Rex v. Rogers, 2 654; Rex v. Campb., 1 B. & Twyning, A., 386; Hicks v. 9 Mar. Martin, Louis.], 47; &Cow. Hill’s Notes, [1 n. 325, Full and p. conclusive where a proof, has party the burden of is not proving negative, required, even vague or such as renders proof, existence of the negative sufficient, inis, some probable, cases, change burden to. the other (Calder v. Rutherford, last party. supra.) request was, counsel plaintiffs’ therefore, over properly ruled. judgment Court should be affirmed. Supreme

Emott, Rosekraws, Balcom, Js., concurred. Denio, Ch. J., circumstance that (dissenting.) had to out his title to make the office plaintiff by claiming the allowance his favor of ballots some respects imper had not been him fect, allowed canvassers, has no influence the main proper involved question the case. If the plaintiff received undisputed major of all the votes and had ity given, obtained the adjudication of the board of canvassers county and had favor, in such an action as this prosecuted present defendant, the same under precise now consideration question would have That arisen. whether a who candidate, is found in a correct estimate the ballots minority actually to law, can, deposited according claim notwithstanding, obtain office, a number of showing votes of sufficient to candidate, opposing changed result, is a qualified cast vote. by persons very

ALBANY, JUNE, 1863. v. Pease.

The People is where constituency question; practical important it must universal where suffrage pre- numerous always for a local in an election even it can rarely happen, vails, to the doubts not arise as reasonable qualifi- office, for the one can- or less number of a voters cations greater disclosed Hence, the other. where by didate or majority held out will small, strongest temptation the ballots of the character to institute defeated scrutiny, to the party this case, qualification persons resorted .into for his The suc- have opponent. supposes whom course, to scru- will, candidate equal right cessful and thus his vote, tinize his the officewill opponent’s canvass, the officialdetermination of the depend, upon „ an issue of distinct the trial of number great involving upon to the and much fact, entailing great parties expense questions on account of and the public, delay inconvenience must in the meantime as to the prevail, legal uncertainty, It is office. a plausible proposition, incumbency a true to an that the one, in one sense say elective rather number of office ought depend legal than candidates, absolute respective does no mJ.ms But the solve the diffi- number. position this case. The real accord- question who, presented culty which the constitution and laws have arrangements ing determining received the question, greatest provided and was elected to votes, the office. If the number law to be determined it as an like open question, has left ordinary rights or, which much depend, matters upon private the certificate canvassers is ma'de thing, the same of the state of the as is poll, prima argued, only fade settled of a can verdict the right only definitely lead us to con- But the nature subject jury. that such could not be the organized by

clude, priori, system in all the of civil Nothing, arrangements gov- legislature. ernment, can be more than that the official various important should be at all times occupied by magistrates posts but about whose title their chosen, posh respective lawfully CASES IN THE COURT OF APPEALS. v. Pease. tions in the administration there public should be neither doubt nor order uncertainty. quiet society due execution of the laws that such require should be the case. A into an officeunder color of a person coming election, no doubt has certain of the characteristics of a public officer; but common observation and that, show without experience an assured title to office, the the officer is not fully respected is unable to obeyed, the accomplish public objects and. intended to which were be secured the creation If office. his title his defective, as an evéntually proves officer de will not him the actions of indi- protect against facto whose viduals persons have affected his been property assumed official acts.

I am of of the opinion policy legal provisions which have enacted is to secure record upon subject evidence of the result of the in a election, which, save few cases to be is conclusive exceptional presently mentioned, all upon individuals, public upon against no can be I which admitted. do verity allegation pro- ceed one of the relied grounds plaintiffs’ counsel, made of elections' are namely, inspectors to be elected judges qualifications persons claiming offer to who The statute declares when vote. * to to vote is -to vote challenged, desiring party him sworn to as shall be to touch- be answer put questions to his residence and his If he refuses ing qualifications. sworn, or to answer after he has been his vote sworn, so fully, is to be This is not a determination inspec- rejected. to aside for refusing tors as to his but he is put qualifications; to he consents the terms law. If comply prescribed by be sworn and he is to be answer, interrogated upon to of due qualification. various involved points in his have shown answers If, inspectors, judgment is to be out that he pointed is deficient any requisite, and the challenge If in his claim to vote, him. he persists to administer is not are obliged withdrawn, inspectors him affirms possession which general oath, JUNE, ALBANY, 1863. People.!). Pease. he refuses to swear If of all the

himself qualifications. oath, if he takes the But his is to be rejected. vote this, exercise, discretion judgment the lan ballot. the effect nearly his This must receive There a section S., 430, R. statute. 19-24.) guage.of §§ at a first view, 1847, seems, the election act in case that, It declares any to this construction. adverse (cid:127) election shall or willfully permit of an knowingly inspector is not entitled election, who or suffer vote any person con shall, said so thereat, inspector offending of a (Ch. misdemeanor. thereof, adjudged viction guilty But this be incurred penalty may consistently § to. have been referred For with the instance, provisions should the vote one whom he receive knew inspector him the without tendering general oath, qualified, him to vote he refused take the allow although oath, should violate the he would section. provisions undoubtedly if the But duty by tendering inspector performs the does not oaths, both his ballot deposit voter administering or the sufferance of the inspectors, any legal by permission the of the but act. sense, by provisions I disclaim reliance the

But any upon while alleged judicial I ám of character the still so far that, as inspectors, opinion is the is concerned, voter made a value com- and an effectual witness respecting qualifications to petent is he liable to indictment Should swear falsely, vote. and the act directs the for perjury; preservation

punishment of his shall much of the voted as of so evidence be having the fact trial to establish of an indictment. upon necessary minute of. are make file a the names of The inspectors take the oaths or either of them, who persons of such an clerks are to names voters distinguish by appro- is them on list list, mark be priate against poll S., filed after the R. 431, 27; canvass p. completed. § there cannot be written 57.) But, necessarily, any p. § bal- name contained on voter’s preserved for it that the essence of this manner of lot, voting APPEALS. IN THE COURT OF CASES

Tho name of the can- from conceal every elector may person of this furtherance for whom he votes. policy, didate if it against possibility were effectually provide all one of each the ballots, except question, investigating annexed at the statement, are, to be variety, to be If canvass, (Id., they close destroyed. § file like the list, placed poll many were preserved ' voter, where were cases, written especially by clerk, or an him, marked might secretly inspector means of be the candidate voted done, determining readily be increased. The directions to considerably destroy the mass the ballots affords some evidence the legis- did not lature an could be contemplate ever inquiry entertained. be position, conclu- suffrage determined

sively oath, voter’s first, may, appear as it said unreasonable, that he is an interested may party. But the interest is not of a nature, which would be pecuniary more other to than nor likely influence, any corrupting of a kind calculated the mind of strongly operate very toy one. matters administration of or the justice, Many ex course are determined business, affida- public parte we do now concerned, consider parties vit to witnesses their causes, own how- dangerous parties ever amount involved. It would be may large quite claim to the each to a subject impossible privilege voting trial The form of the forensic and determination. scrutiny must be brief Voters swear -necessarily summary. this is sometimes and doubtless done. falsely or-mistakenly, is not that the result an election will depend often that it will in ballots of such rare voters; admitting only instances that a candidate having minority happen chosen, still evil would will be declared of a rule which should establishment less than infinitely determined, should be considered except declare that nothing that unsuccessful -and canvass, the official prima facie, by ALBANY, JUNE, 1863.

candidate might, warranto through quo prosecution, try voters in a suit at qualifications’ law.

I alluded to the have already of the policy law providing for a secret ballot. The to vote in this manner has been considered an "usually important valuable safeguard of the of the humble citizen independence the influence against which wealth station might exercise. This supposed would be object accomplished very imperfectly, to be secured privacy supposed was limited to the moment of the ballot. The depositing spirit system requires the elector should be secured and at then, all times thereafter, against other reproach animadversion, any prejudice, account of to his having own unbiased according judg- ment ; and that is made to consist in security shutting up of his mind all within own of the man- privacy knowledge ner in he has bestowed If this suffrage. were the only against post argument judicial scrutiny into factum qualifications voter which defendant claims, I should consider sufficient to show no such quite scrutiny allowable; law cannot be so surely inconsistent itself as to authorize a with judicial inquiry upon particular and at the same time subject, industriously provide concealment of the material facts which the result must of such inquiry depend.

A other suggestion answer those who insist that single could intend to commit law never to the persons offering * their conclu- vote, determining qualifications oath, their own will conclude the observations which sively on this I have to make the case. Absolute part perfection cannot predicated arrangements govern- human whatever wisdom ment, with sagacity they may All can do is to what be contrived. devise legislators seem to them the best shall scheme to practical a „ accomplish object subject capable. public must be filled offices admin- incumbents, public suffer, istration these incumbents must, according our be selected, for the most system, universal part, by Smith.—Yol. XIII. THE OE APPEALS. CASES IN COURT v. Pease. People to there are To the universal vote right

suffrage. generally as age limitations, proper certain citizenship, necessary to and residence. The for the was legislature provide problem in the case of each the ascertainment of these for qualifications this duty -.voter. législature charged “ that shall for laws be made clause ascertaining declaring citizens shall be entitled to who proper proofs The first established. suffrage,” (Art. thereby 4.)§ determination doubt be at what time this should would or after and the election, be made—before vote given, entered chosen had the duties after the prima party facie and the office. The for challenging provisions swearing intent, that to be a indicate, general certainly, voter made and the of such before the manifest convenience voting, if course would that conclusion. This is confirm, necessary, for it the constitutional would plain meaning provision; for absurd the right be law determination provide had, after election the vote and the to be be The next considered would as subject passed. con- it. method determining Upon point, legislature forward, that if one to be a claiming sidered "voter came openly and the who would and before inspectors public, publicly, offered to his be to be neighbors acquaintances, likely or swore his right, positively and no one questioned Vote safe to it would be challenged, quite his qualifications for the the requisite possessed qualifications; assume likely whole community law, therefore, the interest illegal voting. conspire be received with- that in such a case vote should provided (cid:127) should- be chal- As those other evidence. whose right out should be ques- will was voter legislative lenged, n to his if doubts on oath the inspectors; tioned to him should these doubts stated entertained, should be left his should then law explained, oath, his under to affirm peril conscience whether such religious temporal punishment perjury, to abstain affect mind, moral responsibility might ALBANY, JUNE, 1863. This

from voting. system provided by in to the obedience mandate legislature Constitution, in and the one which was existence when election in was held. No doubt the determination of the question is left to right voter’s depend, essentially upon oath, oath, that there is a that a false on mistaken possibility is sometimes be taken. But may hazard a perver- of the sion under franchise, these so arrangements, great to us to hold, against plain language require that a to statute, right reexamine the implied question before a in case the jury, right prevailing candidate in I shall afterwards called think ? not. One has to on read the the trial testimony this to that the case see at the summary scrutiny polls, depending, as it must, upon voter’s necessarily ultimately, oath, to an accurate more conducive result immeasurably than any a can render such a verdict trial. Out of jury nineteen who interrogated witnesses were whom voted they for, in treasurer, for order to show county voted for they six declared that Smith, voted for plaintiff, they him, and- thirteen not remember for could whom voted. they Several testified did not at all, who they were shown have lists. production poll uncer- Equal as to the tainty prevailed alleged disqualification account of those were who shown alienage been the plain- voters; tiff’s were there law mixed questions up of fact. The difficulties of at the questions truth in arriving (cid:127) this case were than particular those probably greater which occur such an would generally conducted a inquiry distance of time from the considerable election, where the denied were alleged voters unlettered and whose men. ignorant as has

My intimated, conclusion, already law does not or of an allow elector contemplate after the election otherwise, has questioned judicially declared taken the result has been law. according place a am belief that such construe- I with the strongly impressed IN CASES THE COURT OF APPEALS. be inconvenient and even tion of the statute would mischievous its its and that allowance would be intolerable in tendency, I an intention legislature impute practice. clearest indications without provide system, I am unable to statute; the language appearing such design. see deal of on the from reliance, A those who differ good part has been conclusion, foregoing placed upon naturally cer held that on tain decisions of has been court, in,the trial an information or an action nature of quo extrinsic evidence warranto, received show ballots not allowed a candidate in the canvass, official his name was not written accurately printed, him, intended have been actually estimated. allowed in the determination of the title to the accordingly office. held that it have, however, We recently voter, intention of the as the ballot, expressed by interpreted, be; as all written evidence may by proof necessary, into considera circumstances, concomitant can taken which If the elector who should tion on the trial. voté deposited he intended it to be for swear so strongly, particu ever it not be unless him, lar could allowed candidate, appeared, that his name was evidence, the other competent actually (The it. 22 N. People Saxton, Y., v. or written printed Seaman, Denio, also The 5 People and see v. 409.) 309; several in cases which examined attentively I have vjarranto in a in nature of that, quo suit been held has in entitled to evidence the court were receive information, the town and documents authenticated by addition the elections and the in conducting concerned officers county v. 4 Slyck, Cow., Van (The votes. People canvassing The 8 Ferguson, v. Id., 153; People Ex 7 Murphy, 297; parte The James, Wend., 81; 19 Same v. The v. People Cow., 102; 23 Turnpike, Id., The Rensselaer The v. ;12 Same Id., 20 Vail, v. Seaman, The Hill, People 3 Heath, The Same v. 222; 42-47; afford the cases, think, of those I Hone Denio, 5 409.) qualifications position countenance slightest ALBANY, JUNE, 1863. 85 v. People their ballots can be voters who deposited subsequently examined. These cases into two classes: those arranged error in some of a nature had omission clerical occurred in the returns or statements which the election officers are re as in v. quired make, Van and The People Slyck People and those in Vail; one of the v. been parties defeated the failure intended him,but for allow votes which his' first name had been with initials written was some only, other written. The respects v. imperfectly Ferguson Cow., 102, decided of this first was class. All that 1827), decided was that for H. N. necessarily Yates ought to be allowed for N. on Yates, Henry these proof initials were used N. and that Yates, no other Henry person name was voted for the office. family Chief Justice preparing court, went opinion somewhat Savage, further than was or can now be sustained. necessary, He was that a voter was opinion competent whom his testify has vote was been intended, which; has been stated, recon this sidered case in court; other and in respects, main has feature, its followed from steadily that time to and is the undoubted now present, (See law state. v. People Seaman, supra; People v. 67 Cook, Seld., ; S. C., Barb., The same kind received and, case before has its us, been mentioned, com argument. was, petency disputed doubt, of the election law, liberal construction which enabled very cases, to act in the first of these court, upon evidence in the results officers concerned of an authenticating which the to But the of justice not authorized receive. election were it is not that the matter manifest surprising case was so the clear intention of a with majority form dispensed was I allowed prevail. legislature, was of the electors election As the law acquiesced. least impliedly, conceive, after directed, were immediately stood, inspectors originally lists and all canvass, destroy poll the town completing at the election. (Laws 1822, 273, and taken p. made ballots direction, contained this except Statutes The Revised 9.)§ THE CASES IN OE APPEALS. COURT People as which were be rejected imperfect, preserved ballots 51, the town clerk. R. It S., 138, with filed §§ of this the time of the about preparation chapter was It was decided. Ferguson v. case perhaps in which the name of that all ballots the candidate supposed fall under the denomination written accurately a ballot But be ballots. might imperfect intrinsically per intended to in name of be fect, which person in the next Hence, written. election law accurately were 'directed to attach their statements one kind found have been for the given ballot of each officers or either them. at such chosen election, They to attach to the former the same state law, also, .in were The statements and the the defective ballots. lists poll ments office, in clerk’s but the filed to be town remaining to the statement were not so attached destroyed. ballots These 1223, 42, provisions 45-47.) p. (Laws §§ in election force and governed still that the seen legislature co-operated finally case. will cases out the principle courts carrying from their persisting requiring evident to; referred kind, one of be destroyed, each a sample the ballots except all as to the a scrutiny quali had no idea encouraging votes, their by preserving electors who fications means prose scrutiny might cuted. conclusion led me to the considerations have foregoing to be reversed Court Supreme ought the judgment trial awarded. new also Js., dissented.

Wright Marvin, affirmed.

Judgment approbation Cowen A Hill’s Notes (vol. CASES IN THE COURT OF APPEALS. v. People learned note 8 McCord is referred to as and the the p. 822), had the the editor obtained remarks and from which source These and the cases writers, him. cited references quoted by that them, the doctrine distinctly recognize by scrutiny an election, reference to the the votes had, validity be voters to diminish the may deducted unqualified given by taken off as so being incompetent, by poll be annulled or In at bar the case disregarded rejected. but proven himself; the voter disqualification by these sustain that authorities abundantly position of the to his declaration want of voter, qualification, admissible and been have evidence. that the act It is of the urged, however, re inspectors, ballot, and, depositing judicial, ceiving therefore, this action. cannot reviewed supposed has been and that the satisfactorily shown, universal contrary in actions or courts, like the proceedings practice pre case, into where sent, inquired very this In the case refutes of The assumption. People v. Van Slyck it was the counsel for the defendant that urged by (supra), certificate determination board canvassers was evidence of conclusive could that it election; neither be contradicted; nor impeached exercised authority the board canvassers was and that if judicial, the Supreme Court jurisdiction review determination of the board their of canvassers, could reviewing exercised power the medium of certiorari, and until reversed in through it remains form, valid and and cannot be conclusive, ques tioned information in nature of quo warranto, These views repudiated in that court, case, that the act of held the canvassers was not judicial, merely ministerial,- the trial, in quo ivarranto, is had upon the right party holding This office. doctrine was promulgated nearly years since, in this forty State, and has, I can far as so ascertain, in and acquiesced sustained in all cases, and think ought I now to disturbed. Ferguson v. court (supra), urged

Case Details

Case Name: People Ex Rel. Smith v. Pease

Court Name: New York Court of Appeals

Date Published: Jun 5, 1863

Citation: 27 N.Y. 45

Court Abbreviation: NY