94 N.Y.S. 996 | N.Y. App. Div. | 1905
The order appealed from grants a peremptory writ of mandamus requiring the defendant to forthwith reconvene as the board of canvassers of Essex county and correct certain alleged errors in its canvass, and perform its duty by rejecting and excluding from its canvass and certificate thereof all votes cast upon the question submitted at the election on the 8th day of November, 1904, as to
The result of the canvass as certified by the board was in the affirmative and 3,134 votes in the negative on such question, being a majority of 293 in favor of removal.
The voting was by ballot' in all the election districts of except in the first district of Moriah and the two districts of Ticonderoga, where voting machines were used. The the districts where the machines were used shows 723 votes in the affirmative and 298 in the negative. The ballots used in all the other districts were precisely the same in form and were the official ballots furnished by the county clerk.
There is no allegation in the moving papers of any fraud or dishonesty in the election or in the returns thereof, nor that the canvass and the certificate thereof made by the defendant does not correctly give the result of the votes actually cast and returned for and against the proposition. But the relators seek to sustain the order because of certain alleged defects and irregularities in the ballots and in the returns and in the use of voting machines in districts rendering, as they insist, the election void. These will be considered in their order.
First. It is urged that all the ballots cast are void because not in the form required by section 82 of the Election Law (Laws of 1896, chap. 909, as amd. by Laws of 1901, chap. 598) for questions, submitted. That section provides that “ at the top of each such ballots,
In addition to these words the ballots in question contained above the perforated line the following words, required by section 81 of the Election Law to be printed upon the stubs of general ballots,, viz.: “Any other mark than the cross X mark used for the purpose of voting, or any erasure made on this ballot makes it void, and can be counted hereon. If you tear or deface or wrongly
It is not claimed that the use of these additional words served to mark or identify any specific ballot, for they were all alike, or deceived any elector, or in any way affected the number of votes cast.
Notwithstanding section 82 of the Election Law (as amd. supra) states that there shall be printed above the perforated line “ the following words only” the same section also provides that “such ballots shall comply with the requirements of official ballots for candidates for public office, in so far as such requirements are applicable thereto.”
The phrases should be read and construed together. The added words were applicable to and were required by section 81 of the Election Law to be printed upon the face of each stub of the official ballots for candidates for public office, and the failure of the elector to observe each of the admonitions contained in these added words in voting upon the question submitted, would have rendered his ballot void. (Election Law, § 110, subd. 2, rule 9, as amd. by Laws of 1898, chap. 335, and Laws of 1901, chap. 654.) The rule cited defines what, under the law, constitutes a void ballot, and it is not claimed that the ballot in question comes under the condemnation of that rule.
Nor does the provision of section 106 of the Election Law that “ none but ballots provided in accordance with the provisions of the Election Law shall be counted,” which is called to our attention by the respondents, affect the question, for the ballots in question here were provided in accordance with the provisions of that law and were official ballots. The purpose of that provision is clearly to prevent the use of any other than official ballots, except only in the cases provided for in sections 89 and 107 of the law, and not to condemn as invalid official ballots which have been furnished to the electors by public officers charged with that duty, for some oversight or error on their part.
The county clerk, whose duty it was to prepare and furnish the official and sample ballots (Election Law, §§ 86, 87, as amd. by Laws of 1904, chap. 733, and Laws of 1897, chap. 379, respectively), in good faith and after consulting with counsel, caused them to be
It may be said also that by section 86 of the Election Law (as amd. by Laws of 1904, chap. 733) the officer (in this case the pounty clerk) charged with the duty of providing official ballots is required, when the election is held at the same time as a general election, as in this case, to have in his possession sample ballots five days and official ballots four days before the election, open to public inspection, and that during such times it is his duty “ to deliver a sample ballot of the kind to be voted in his district to each qualified elector Who shall apply therefor, so that each elector who may desire the same may obtain a sample ballot, similar except as regards color and the number on the stub to the official ballot to be voted at the polling place at which he is entitled to vote.”
Thus the opportunity is afforded all electors to inspect the official ballot and to procure a sample ballot several days before the election, and the way is also provided in section 88 of the Election Law, in case of any error or omission in the printing of the sample or official ballot, for a summary application to the Supreme Court or a
With these provisions in the statute to insure the correctness of the official ballot it is too late after an election to hear complaints as to the form of such ballots, and this is the general rule prevailing where such safeguards are contained in statutes providing for official ballots. (10 Am. & Eng. Ency. of Law [2d ed.], 714; 15 Cye. 352.)
Second. In the districts where voting machines were used the question submitted was in the same form as upon the official ballot and neither the cardboard containing the statement of the question nor the machine had upon it the words “ for ” and “ against,” which are the words used in section 183 of the Election Law (added by Laws of 1899, chap. 466) in defining the word “ ballot” as used in the article of that law relating to voting machines. (Art. 7, added by Laws of 1899, chap. 466, and amd. by Laws of 1901, chap. 530, and Laws of 1903, chap. 122.) Because of this fact it is urged that the votes cast by aid of the machines should not be counted. Instead of the words “for” and “ against” the machines had upon them for A'oting upon the question submitted the words “ Yes ” and “ No,” and any elector who desired to vote in the affirmative upon such question turned the indicator upon the machine to the Avord “ Yes,” and if he desired to voté in the negative he turned it to the Avord “ No.” There Avas but the one question submitted at the election and there is no pretense that any elector Avas deceived in voting by the use of the Avoids placed in the machines instead of those mentioned in the statute. The Avoids “ Yes” and “ No ” are the words required by section 82 of the Election I,aw (as amd. supra) to be used on official ballots for questions submitted and are the exact equivalents of the Avoids “ for ” and “ against ” when used for the purpose of expressing an affirmative or negative choice upon such question. More than this, the voting machines with these words upon them were provided by the public officials for the use of the electors at the election districts in question.
Third. It is also urged by the relators as an irregularity affecting the result that no tally sheet as to the question submitted was filed from any district and that the tally sheets filed as to the general ticket contained no statement that any votes were cast upon such question. The official tally sheets furnished by the county clerk had no blanks upon which to tally the votes cast upon such question. Provision was made upon them to tally the votes cast, for candidates only. This form of tally sheet conforms exactly with the form prescribed by the Election Law (§ 84) and the law nowhere, in express terms, requires the result of the vote on questions submitted to be entered upon the tally sheets. The purpose-of the tally sheet under the law appears to be confined to entering thereon the votes cast for the respective candidates for office and to first stating thereon the number of such votes cast and counted for each candidate upon straight ballots, then in a separate column to stating the number of such votes cast and counted for each candidate upon split ballots, and, finally, in another column, to stating the total number of votes cast and counted for each of the respective candidates, in order to safeguard the count and insure accuracy in it and in the returns, and in order to secure conformity to the method of counting ballots prescribed by subdivision 3 of section 110 of the Election Law (as amd. by Laws of 1898, chap. 335). There is no need for this in counting votes cast upon a question submitted, for there can be no split ballots cast. Omitting void ballots and those marked for the purposes of identification they are all necessarily affirmative or negative votes and can simply be separated into two-piles and counted. Theri is no pretense that the votes were not correctly counted as cast and correctly inserted in the original statement of canvass, and nothing appears on this branch of the case that should in any way affect the final result.
Fourth. It is alleged also by the relators that original statements of canvass from twelve election districts, showing in the aggregate 1,404 votes in the affirmative and 1,166 in the negative, were filed with the county clerk and delivered to the defendant board and wrongfully canvassed, for the reason that they were not securely and sepa
Fifth. The claim is also made that because the returns from the election district of Newcomb, the election district of North Hudson and the second election district of Ticonderoga were not filed wdth the county clerk within twenty-four hours after the completion of the canvass in these districts respectively, as required by subdivision 1 of section 113 of the Election Law (as amd. by Laws of 1897, chap. 379), the 359 votes in the affirmative and 211 votes in the negative cast in these districts should have been excluded from the canvass by the defendant. The canvass in the election district of Newcomb was completed at two o’clock in the morning of November ninth. At about six o’clock the same morning an inspector started with the returns for Elizabethtown, the county seat, fifty miles distant over mountain roads. He was unable by reason of the condition of the roads and of his horses to reach the county clerk’s office that day within the regular office hours of the clerk. He consequently remained over night at Underwood, thirty-eight miles from his starting point, and reached the clerk’s office the next morning at eight o’clock. The returns for North Hudson were first presented to the county clerk on November ninth and within the
Sixth. The defendant counted and included in its canvass 176 votes in the affirmative-and 92 in the negative from' the third district of Moriah, where it was stated on one page of the return mad,a by the inspectors that “ the whole number of ‘ Question Submitted ’ ballots actually voted * * * were none.” It appeared, how-
ever, upon another page of the return that the inspectors had certified the votes cast upon the question as above stated. No objection was made before the defendant to canvassing these votes and no one.
Seventh. Objection is also made to the form of the question submitted on the ballot, which was as follows : “ Shall the site of the Court House, County Clerk’s Office, County Jail, County Judge and Surrogate’s Office, County Treasurer’s Office, Sheriff’s Office, District Attorney’s Office and all County offices connected with said Court House and said County Buildings now located in the Village of Elizabethtown, County of Essex, be changed to a new site in the town of Westport, in said County of Essex, described as follows:”. (Including the description of the new site.) The claim is- that sections 31, 32 and 33 of the County Law (Laws of 1S92, chap. 686, as amd. by Laws of 1899, chap. 133) provide that the change and question submitted must in terms include the location of the county offices and that there is no reference in the ballot to a change of the location of any county offices, but only to a change in the site of such offices. We need not discuss the question as to whether or not there is any force in this objection, as it cannot jn-operly be decided in this proceeding, which is one instituted under section 133 of the Election Law. That section authorizes the Supreme Court, when it appears that “ errors have occurred in any statement or determination made * * * by any board of county canvassers or that any such board has failed to act in conformity to law,” to “ make an order requiring such board to correct such errors or perform its duty.” The statute did not charge the defendant with
Some further questions of a technical nature are raised by the respondents, but they do not impress me with sufficient force to require extending this already somewhat lengthy opinion by discussing them.
The review so far'had of the questions presented" on this appeal leads me to the conclusion that there has been no failure on the part of the defendant to act in conformity to law, and that there have been no errors shown in any statement or determination made by it and, consequently, that the writ of mandamus addressed to it was improperly granted. • >
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for the writ denied, with fifty dollars costs and' disbursements.
All concurred.
Order reversed, with ten dollars costs and disbursements, and the motion for the writ denied, with fifty dollars costs and disbursements.
SIC.