8 N.Y.S. 254 | N.Y. Sup. Ct. | 1889
Lead Opinion
The relators and the defendants are inspectors of election, and together composed the board of inspectors for the-election district, in the ninth ward of the city of Troy at the last general election. Upon the close of the polls on the day of the election, the board thus constituted counted the ballots, canvassed the votes, and proclaimed the results in that district. Thereupon such results were correctly stated in returns in the form required by law, and the relators signed the returns, but the defendants refused, and still refuse, to sign them. The special term by mandamvs directed the defendants to sign the returns, and the defendants appeal from the order. The order should be affirmed, unless the facts alleged by the defendants in justification of their refusal amount to a sufficient justification. They make affidavits in their justification that, “during said election, to deponents’ knowledge, there were at least seventy fraudulent votes offered at said polls. By fraudulent votes deponents mean that persons who did not reside within said election district, and who were not registered, and who were not entitled to vote, appeared before said board and fraudulently and falsely represented themselves to be registered voters, which they were not, to deponents’ knowledge. Upon offering said fraudulent votes deponents would object to their receipt, said persons were challenged and sworn, and their answers were unsatisfactory. In many cases opportunity was not given to deponents to question the voters, and the said ballots were not, nor was any one of them, received by said board, or a majority thereof. Although said ballots were not received by the bqard, and were not given at said election, nevertheless the said Hassett and Stapleton, the other members of said board, contrary to the protest of deponents, took said ballots that were not given by any voter, and were not received by the board, and put said fraudulent ballots into the ballot-boxes in charge of said board at said election. Deponents are prepared to prove each one of the allegations herein made by reliable witnesses. Deponents did not sign the returns referred to in the moving affidavits herein, for the reason that the same are incorrect. There were not given in said district the number of votes therein named, and there were not received by the various candidates the number of votes therein stated, in that there were upwards of 70 votes, before referred to, that were put into said boxes contrary to the protest of deponents, and without said ballots having been received by the board, or a majority thereof. ” Upon the oral argument counsel for defendants stated that the defendants knew or believed that these 70 votes were deposited by persons who falsely personated persons whose names were on the registry of electors for that district. Giving to the affidavit this construction, it is proper to examine and ascertain whether the affidavit shows that any of these votes were illegally received. The persons offering them were challenged and sworn, and made answer. Their answers were not satisfactory to the defendants, but that is very far short of a statement that their answers were not as full and complete as the law requires.
The case of the defendants rests upon the position that the defendants were acting judicially, and that upon hearing the answers of the persons challenged, if defendants did not believe what they swore to, or, from their own knowledge of the men and of the facts, believed that they committed perjury, they had the right to decide the case in conformity with their own knowledge and belief, in disregard of the sworn statements of the persons offering to vote. In our opinion, such is not the law. The election laws of this state have been framed with the intent to prescribe, as fully as necessary, the tests by which the right of a person to vote shall be determined, and to leave as little as possible to the discretion or judgment of the inspectors of election. These officers, as their name implies, are inspectors, and not judges, of the election. The intent of the statutes is that the inspectors shall follow the directions prescribed, and that by so doing the right to vote of any person whose right is challenged will thereby be determined; that is, the fact will be so manifest
The statutes having carefully prescribed the tests to determine the right of any person to vote, the proposition that the inspectors can, in addition thereto, prescribe or impose such other and further tests as they may deem adapted to the particular case before them, is wholly inadmissible. If the person offering to vote does comply with the statutory tests, the inspectors’ disbelief in his honesty or identity must yield, and the vote should be received. There is no allegation that these 70 voters did not comply with the statutory tests, and hence the conclusion follows that their votes were lawfully received, whether the defendants were or were not satisfied; and, having been received and counted, the proper returns should be made and signed. It is, however, urged that these ballots were not “received,” because the defendants did not-consent to their deposit in the ballot-box. To test this question, suppdse one of these voters should sue one or all of the inspectors for refusing to receive his vote. He certainly would be defeated, upon the facts here presented, showing its receipt. The proposition that, if the inspectors know, of their own knowledge, that the person offering to vote is not the person actually registered, they may disregard his statement and oath, and reject his vote, is
The defendants believe that some of the votes were illegally cast. Belief is: not proof. To reverse the order appealed from would be to suppress the vote-of the district, and to invite occasion for like suppression in the future in other districts. If any person, aggrieved by the returns, desires a judicial investigation as to the illegality of any of these votes, the law prescribes the procedure. The law prescribes the punishment for illegal voting. The votes received must be returned. It follows that the order appealed from should be affirmed.
In the five other cases herewith argued the orders appealed from are also affirmed.
XiEABned, P. J., concurs.
Dissenting Opinion
(dissenting.) The order from which this appeal is taken directs the issuing of a peremptory mandamus to the defendants, requiring them-“forthwith to sign the election return heretofore filed in the office of the county clerk of liensselaer county, and to certify to the correctness thereof. ” The defendants, in answer to the motion, state that they did not sign the returns, for the reason that the same are incorrect; that there were not given in said election district the number of votes therein named; that there were not received by the various candidates the number of votes therein stated; and further state that there were upwards of 70 votes put into the ballot-boxes from which' these returns are made without, having been received by the board of inspectors, or a majority of them. This statement is sworn to by the defendants, who constitute half of the full board of inspectors. Their affidavits are entitled to at least as much weight as that of the relators. The evi
If the order contemplated the making and signing by the defendants of a return of the election, it might not be offensive to their sense of propriety. Such an order would be well sustained by judicial authority. If these defendants were contumacious, and refused to make any return, it would be proper for this court to give them direction, not to make or sign any particular return, or to certify to the eorrectness'of any particular return,'but simply to make a return of the election. See People v. Common Council, 78 N. Y. 33. But the order calls upon the defendants to certify to the correctness of the return now on file, made up by the relators, who were associate inspectors, and which return defendants protest under oath is not correct, but is false in substantial particulars. By this order the defendants are required, by a peremptory mandamus, to certify to the correctness of a thing which they say they know to be incorrect; which they know to be a false return; in fact, to commit an act which, if voluntarily done, would be a crime, and render them liable to indictment.
I do not think that the arbitrary and extraordinary powers of this court ought to be exercised to enforce action upon such doubtful premises, and, above all things, to require public officers, acting under a solemn oath, to do a thing which they protest will be untruthful when. done. There is no precedent for such action in any case where there was a bona fide dispute about the facts. It is only in clear and unquestionable cases that this extraordinary process is called into action. See People v. Supervisors, 64 N. Y. 600; People v. Wendell, 71 N. Y. 171; People v. Campbell, 72 N. Y. 497; People v. Hines, 10 Wkly. Dig. 88. Even if it be conceded that inspectors of election are strictly ministerial officers, having no judgment or discretion to exercise, and who may not, under any circumstances, reject the vote oí any person who presents himself,, and takes the formal oath, no matter how transparent a fraud is perpetrated, still they ought not to be compelled to certify to the correctness of that which they do not believe to be true, or that which they protest is not true. But I am unwilling to hold that the election inspector is nothing, unless it be a clerk of the election, bound to receive and deposit in the ballot-box the votes of all who may be willing to take the prescribed oath, and whose only duty or authority beyond that is to count the ballots, and certify the result. One inspector could do that, with the aid of the watchers, to see that the count was right. Why is a board of inspectors provided, if they have no judgment to exercise in any case? And especially why is there provided for the city of Troy a non-partisan board, made up of two members from each political party, unless there is something to be done or determined upon which the minds of men may differ? It is claimed by the learned counsel for the relators, in his very able argument, that every person who offers his vote, if he takes the oaths required, determines for himself the question of his right to vote. If he testifies that he is the man named on the registry as John Doe, and that he resides at the place named, and thus fills out the formal requirements, his vote must be accepted by the inspectors, even though they all know that he is not the John Doe entered on the register, and know that he is not entitled to vote. Can this be so? Is it possible that a board of election inspectors, consisting of four members, must stand by and see an open fraud upon the franchise committed, knowing it to be such, and yet without power to prevent it ? It is plain that such a holding must lead, not only to ttie forced reception and count of the unlawful votes, but to the exclusion and disfranchisement of those entitled to vote whose places upon the registry are usurped. There may be many John Smiths residing in the same election district, some of whom are registered and entitled to vote, others not. Is there no power in a board of inspectors, so far as they know, to see to it that the genuine John Smiths are not robbed of their franchises by those who assume their
In the case before us the defendants make affidavit that more than 70 votes were put in the ballot-boxes in question without the consent or action of the board of inspectors, and which came from persons who they knew were not legal voters, and who were not registered. These ballots were taken and deposited in the ballot-boxes by one or two of the inspectors, against the protest of defendants, who constituted half of the board, and were not, therefore, received by the board. If this statement is true, the ballot-boxes contained the large number of ballots referred to, which had not, in contemplation of law, been received by the inspectors, any more than if the persons who offered them had, with strong hand, made the deposit. And if the ballot-boxes were thus freighted with such ballots, deposited without the direction of the board, no correct count could be made of the votes received.
The omission of the inspectors to make a return will not have the effect to destroy the votes of the legal electors, or prevent the election of any candidate who received a majority of the legal votes. It will leave it open to other modes of proof to ascertain the result. A great inconvenience may result, not so great, however, as may come if the principle upon which this order is granted shall prevail.
With great deference to the opinion of my distinguished brethren, and fully impressed with the desirability, on so vital a question, of harmonious judicial results, I am nevertheless persuaded that the extraordinary powers of this court will not be well exercised by directing a mandatory writ to these defendants, requiring them to certify to the correctness of a return which they protest is not correct or true. With mucli reluctance, therefore, I dissent from the conclusions of a majority of the court.
