| NY | Dec 16, 1898
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *433
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *434 We have a state of facts presented upon this appeal rather unusual in character.
A writ of alternative mandamus was applied for upon the allegation that in the third election district of the first ward of the city of Buffalo, at the election in November, 1897, eight ballots were marked for the purpose of identification, and that they were duly indorsed, counted and placed in an envelope as required by the Election Law. (§ 110, subd. 3.)
After a hearing upon the alternative writ the Special Term decided that these eight ballots were marked for the purpose of identification and consequently void.
A writ of peremptory mandamus was thereupon issued, directing the inspectors of election to convene on a day named, and make and sign an original statement as required by law and to return the eight ballots as protested and declared void by the court, and that no vote be counted thereon for any person.
The Appellate Division affirmed the order of the Special Term, although it was of the opinion that the eight ballots were not marked for identification, but were void under § 105 of the Election Law.
While we are of opinion that these eight ballots are void and not marked for the purpose of identification, we prefer to rest our affirmance of the order appealed from upon what we deem a proper construction of §§ 105, 110 and 114 of the Election Law, rather than on the power of the court under the common-law writ of mandamus.
Section 105 defines a void ballot; § 110, subd. 3, points out the mode of dealing with a ballot not void, but marked for the purpose of identification, and § 114 allows any interested candidate to invoke the judicial investigation of either class of ballots by writ of mandamus.
It was very clearly the duty of the inspectors in this case to have held these eight ballots void and not to have counted *436 them. They treated them, however, as valid and marked for the purpose of identification and counted them. The relator has instituted this proceeding under that alleged state of facts, and we have to deal with the situation as it exists.
As already pointed out, the Election Law has empowered the courts to deal with these two classes of ballots in a mandamus proceeding, and as the ballots in controversy are before us and subject to inspection, we have jurisdiction to pass upon them as void ballots.
These views lead to a modification of the orders of the Special Term and of the Appellate Division affirming that order, to the effect that these eight ballots are void and ought not to have been counted.
Also, further modifying the order by directing the board of inspectors to assemble on a day to be named, and then and there make and sign an original statement as required by law, giving the true result of the election as ascertained by treating these eight ballots as void and counting no vote thereon for any person.
It appears in this proceeding that the original inspectors' return and statement of canvass by error stated, in filling up the printed blank, that these eight ballots were treated as void, whereas it was designed to have filled them in under another head, as marked for identification.
The eight ballots, as sent to us from the clerk's office of Erie county, are contained in an envelope officially indorsed "ballots protested as marked for identification," and it is quite evident that the filling in of the printed blank, as above stated, was a clerical error.
When the new inspectors' return and statement of canvass is made out as herein directed, the eight ballots should then be returned as void and not counted.
As we are not called upon to deal with these ballots as valid but marked for identification and thus voidable, the point urged by the appellants' counsel, that they were not sufficiently or legally objected to by the board of inspectors so as to enable the relator to maintain this proceeding, is not of importance, *437 but we feel constrained to say to inspectors of election that when a ballot is not void, but is to be dealt with as objected to because marked for identification under § 110, subd. 3 of the Election Law, great care should be observed to follow every provision of the statute designed to identify and preserve the ballots for future legal proceedings.
The orders of the Special Term and Appellate Division should be modified in accordance with the foregoing opinion, and, as so modified, affirmed, without costs to either party.
All concur, except GRAY, J., absent.
Ordered accordingly.