Opinion
May, 1905.
R. Corbin and E.T. Stokes, for the appellant.
Richard L. Hand and Francis A. Smith, for the respondents.
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 whether or not the site of the courthouse and county buildings in that county should be removed from Elizabethtown to Westport.
The result of the canvass as certified by the board was 3,432 votes in the affirmative and 3,134 votes in the negative on such question, being a majority of 298 in favor of removal.
The voting was by ballot in all the election districts of the county, except in the first district of Moriah and the two districts of Ticonderoga, where voting machines were used. The canvass of 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 certain 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, immediately above the perforated line, shall be printed in brevier capital type the following words only: `Notice to electors: For an affirmative vote upon any question submitted upon this ballot, make a cross X mark in the square after the word `Yes.' For a negative vote, make a similar mark in the square following the word `No.''"
Sic.
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 no vote can be counted hereon. If you tear or deface or wrongly mark this ballot, return it and obtain another. Use only a pencil having a black lead."
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 observer 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 printed with the added words and furnished them for the use of the electors. Even though such added words were inadvertently or wrongly used, instead of lawfully as I think, the ballots would not for those reasons be void. ( People ex rel. Hirsh v. Wood, 148 N.Y. 143.) The case cited was one where the clerk wrongly and without authority of law inserted in a party column names of candidates other than those duly nominated by the party whose name and emblem headed the column. Nevertheless, the court held that the electors were not for that reason to be disfranchised and that votes cast for such candidates were properly counted. The principle upon which that case rested is controlling here, as is shown from the following pertinent quotation from the opinion of Chief Judge ANDREWS. He says (pp. 146, 147): "We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake or even the willful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult."
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 county 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 justice thereof by any elector to correct such error or omission. The same section also authorizes the county clerk, when the ballots are to be furnished by him, upon his own motion, to correct without delay any patent error in the ballots which he may discover, or which shall be brought to his attention, and which can be corrected without interfering with the timely distribution of the ballots to the inspectors for use at such election.
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 Cyc. 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 voting 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 word "Yes," and if he desired to vote in the negative he turned it to the word "No." There was but the one question submitted at the election and there is no pretense that any elector was deceived in voting by the use of the words placed in the machines instead of those mentioned in the statute. The words "Yes" and "No" are the words required by section 82 of the Election Law (as amd. supra) to be used on official ballots for questions submitted and are the exact equivalents of the words "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. What has been said with respect to official ballots applies with equal force to voting machines and the voter should not be disfranchised for the errors or omissions of such officials.
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. There 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 separately sealed with sealing wax as required by section 112 of the Election Law. These allegations were denied by the answering affidavits, which show that while such statements were not in every case "separately sealed," yet in every case they were "securely sealed" with sealing wax when filed with the county clerk; one having been sealed inclosed with the tally sheet, one with detached stubs and unvoted ballots, one with the poll book and tally sheet, and others with other official papers used at the election. The answering affidavits show that the failure to comply strictly with the requirements of the statute in this respect was in each case unintentional. At the most these failures were mere irregularities resulting either from not fully comprehending the statutory requirements or from oversight on the part of the inspectors. In the absence of any claim that these irregularities resulted in any tampering with the returns or in any fraud in connection with them, or that these returns as canvassed did not correctly show the votes cast on the question in the districts from which they came, the electors in such districts should not be disfranchised because of them. ( People v. Cook, 8 N.Y. 67.)
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 with 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 twenty-four hours, but on defects therein being pointed out by the clerk the inspector was requested to take them back for correction and return again with them that night if possible. Because of difficulty in finding the other inspectors he was unable to get the corrections made until the night of the ninth. This prevented him from filing the corrected returns with the county clerk until about eight o'clock on the morning of the tenth. The filing of the return from the second district of Ticonderoga was also delayed until the tenth because of the failure to furnish the inspectors, as the law required, with the blank for "Inspectors' Return and Statement of Canvass" for that election. (See Election Law, §§ 84, 86, 87, as amd. by Laws of 1897, chap. 379, and Laws of 1904, chap. 733.) This was procured from the clerk on the ninth and returned and filed on the tenth. The effort in each of these cases, it appears, was not to violate the law, but to comply with it, and it is not claimed that the belated returns in each case do not represent accurately the votes cast in these districts upon this question. The Election Law provides a way in section 131 (as amd. by Laws of 1897, chap. 379) for the county board of canvassers, which is required by section 130 of said statute (as amd. by Laws of 1901, chap. 208) to meet on the next Tuesday after an election, except as therein otherwise provided, to secure the production before it of any missing original statement of canvass, or of one of the certified copies thereof, before it proceeds to make its canvass. Thus the law expressly recognizes the possibility of the filing of the returns being delayed beyond the twenty-four hours. There is no provision rendering them void because of such delay and the purpose of the provision to secure the filing of such returns is that they may be canvassed. For these reasons, although the returns in question were not filed within twenty-four hours, they were properly canvassed by the defendant.
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 made by the inspectors that "the whole number of `Question Submitted' ballots actually voted * * * were none." It appeared, however, 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 now questions the accuracy of the return upon the other page as to the votes cast. On the application for this writ there was read on behalf of the defendant the affidavits of all four of the inspectors in that district, that when they inserted the word "none" they supposed the blank where it was inserted related only to other questions than the removal of the county buildings and that they inserted the word there under a misapprehension. They also each swear to the correctness of the vote from their district upon the question as included by the defendant in its canvass and certificate of the result. If the return of the inspectors had been objected to upon the canvass by the defendant, the inspectors could have been summoned before such board pursuant to section 132 of the Election Law to correct the error. This not having been done, and apparently there was no need to do so, for the return carried the correction upon its face, it was properly canvassed by the defendant.
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 1892, 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 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 properly 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 the duty of determining the legality of the election or of the ballots, but it was required to canvass the votes cast at the election. (Election Law, § 131, as amd. supra.) It not being its duty to determine whether the question submitted was proper in form the court had no power to compel them to do so by mandamus, but the decision of that matter must be left to an appropriate action to determine the validity of the election.
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.