156 N.Y.S. 837 | N.Y. Sup. Ct. | 1915
While most of the alleged discrepancies have no direct bearing upon the controversy between the Democratic and Republican candidates for the office of mayor, the board of county canvassers take the position that they are sworn officers of the law and that they have the right and it is their sworn duty to obtain corrections in the returns submitted to them, whatever office or proposition may be involved, to the end that they may perform their statutory duty. In that respect I do not think their attitude can be successfully assailed.
The precise question involved is the extent of the power of the board of county canvassers under section 416 of the Election Law.
The heading and first sentence of that' section need careful consideration and are as follows: “ Provision for recanvass of vote. Whenever it shall appear that there is a discrepancy in the returns of any election district, the county board of canvassers shall summon the inspectors of election thereof and said inspectors shall, in the presence of said board of canvassers, or
What does “ discrepancy ” mean?
What office was it designed to fill in this legislation?
The word “ discrepancy ” is derived from a well known Latin verb (discrepare) signifying to differ in sound, to sound differently or discordantly, applicable originally to sounds in the physical world. In process of time the word acquired a broader meaning and came to be applied to things generally that differed, did not agree, were not in harmony. Thence came the noun “ discrepancy,” synonyms of which are discord, discordance, dissonance, dissidence, unconformity, disagreement, difference. A discrepancy might exist between two existing things or two existing numbers that ought to agree, or between an existing thing which fails to conform to a given standard and the standard. The statute requires the certificate made by the district inspectors to conform to a given standard. Where an alleged return does not conform to what the statute requires, there is a discrepancy between it and the statutory requirement. In such a case there is a discrepancy in the return, a lack of conformity, unconformity.
This' word discrepancy crept into the legislation creating section 416 of the Election Law, as it now exists, through an amendment to chapter 909 of the Laws of 1896 contained in chapter 491 of the Laws of 1908 in which act section 179b was added to section 179 of the act of 1896. That was a new provision applicable to voting machines alone and is now retained in its exact wording as originally adopted. It seems to me
It was argued on behalf of the applicant for the injunction that if there was any difference between the figures shown in the returns and tally sheets the returns must govern, and People ex rel. Noyes v. Board of Canvassers, 126 N. Y. 392, was cited as authority for the proposition. That was not a voting machine case but a ballot case and there the Court of Appeals decided that there was a distinction between
I have not the time to describe the operation of the voting machines used in Utica at the last general election, but I am satisfied that properly used they are reasonably accurate. They involve the mechanism of the cash register and the adding machine. They are wonderfully safeguarded against fraud and mistake. The suggestion is made that, because the voting machines since the moment the election district officers completed their’ canvasses have not been under the surveillance of a squad of policemen, they have been tampered with. Whether these machines were closely watched, or not watched at all, they were reasonably guarded by the seals, locks and other devices. It
For years ballots were destroyed immediately after the district canvass was completed; indeed this was substantially so from 1822 to 1896. From 1822 to 1842 both the ballots and the poll books were destroyed. The act of 1842 required the poll lists or poll books to be preserved. It was not till 1896 that the law required the unprotested voted ballots to be preserved. The trend of modern legislation and of modern judicial opinion, however, is in favor of some inquiry beyond the bare returns of district election officers. Election Law, §§ 374, 414, 416 and 433 and People ex rel. McLaughlin v. Ammenwerth, 197 N. Y. 340. At the same time such inquiry should not go so far as to create public embarrassment by failure speedily to have made known the result of an election. Theoretic
Whatever may be the result of the work of the board of county canvassers, that result might be swept away in an action in the nature of quo warranto brought by the unsuccessful candidate against the candidate who succeeds for the time being by the action of the board of canvassers.
I think the county board of canvassers is a ministerial body and has no judicial power. At the same time I think it is right in seeking to get much of the information which has been ■ denied to it by the injunction herein. Indeed, the propriety of the injunction is so much in doubt, I have concluded to dissolve it. But in doing this, I shall indicate my views as to what the county board of canvassers may do in the premises. I think both the district canvassers and the county canvassers are absolutely bound by what the counter compartments of the voting machines show. If a discrepancy, as I have defined it, can be cleared up without unlocking a machine, the machine should not be unlocked. If after an inspection of the public counter a discrepancy still exists, then the counter compartment may be unlocked without unlocking the machine against voting. If the discrepancy, still exists after getting all the light the counter compartment discloses, then the county canvassers under the direction of the statute may unlock the voting and counting mechanism of the machine and the same may be tested.
This opinion has been very hastily prepared because the public exigency seems to demand immediate action.
An order may be entered dissolving the injunction, but without costs.
Ordered accordingly.