July Term, 1902.
M.D. Murray and Andrew J. Nellis, for the appellant.
James R. Van Ness, for the respondent.
In the appeal from the order of Justice HOUGHTON, bringing in the appellant as a party to this proceeding, it is first objected that the notice of appeal does not sufficiently identify the order. While the date of the order is incorrectly stated in the notice of appeal, the notice of appeal specifies the order appealed from as the order bringing in the appellant as a party. This description sufficiently identifies the order. The order was made, however, upon the objection of the appellant that he was "not, and should be" a party to the proceeding, and in the subsequent proceedings no objection was made by him that he was not properly there. Of an order made under such circumstances we think the appellant has no cause of complaint, and that his appeal should be dismissed.
The appellant objects to the granting of the writ of mandamus upon the ground that the board had completed its work and adjourned. While this objection might have been good under the old law, specific provision has been made for such an emergency by section 133 of the Election Law (Laws of 1896, chap. 909). In that section it is specifically provided that, if the board of canvassers shall have made its determination and dissolved, such board might be reconvened for the purpose of making any proper correction or performing any other duty. If, then, this board of canvassers had improperly canvassed the votes or had made an improper certificate, these writs were properly ordered.
Were these writs then justified upon the merits? By section 135 of the Election Law (as amd. by Laws of 1897, chap. 379) the board of canvassers were required, upon the completion of the canvass, to make a statement "as to all the votes cast for each county office." Section 136 (as amd. by Laws of 1897, chap. 379) provides: "Upon the completion of the statements required by section one hundred and thirty-five of this act, the board of canvassers for each county shall determine * * * each person elected by the greatest number of votes to each county office of such county to be filled at such election * * *." These sections have been the subject of judicial construction. In Kortz v. Board of Canvassers of Greene County (12 Abb. N.C. 84) it was held that "a board of county canvassers has no power to determine that votes cast for and returned to one name, e.g., Andrew C. Getty, were intended for and should be counted and allowed to a person bearing another name, Andrew H. Getty. It has no power to take proof as to such facts nor to make such determination in its absence. Upon an application for a mandamus under L. 1880, c. 460, authorizing the writ to correct errors in the determination of boards of county canvassers, the court has no greater power than the board itself and must direct a canvass of the vote as cast even though it appear by affidavits that the votes were all intended for the one person." The act referred to has been substantially re-enacted in the Election Law (§ 133).
In People ex rel. Yates v. Ferguson (8 Cow. 102), in an action of quo warranto "on an issue to try whether one was elected Co. Clerk, whose name at length was Henry F. Yates; Held that votes for H.F. Yates were allowable if, under all the circumstances, the jury should believe that they were intended by the voters for Henry F. Yates." In that case the opinion quotes the statute, which reads, "which ballot shall also be a paper ticket containing * * * the name of a person for clerk of said county." At page 106 the opinion reads: "A name I understand to be a discriminative appellation or designation of an individual. This is so understood universally, and the state canvassers, in the rules adopted by them, to which the learned judge at the trial referred, so understand it. They admit the letters Geo. to represent George. Why? Because, by common consent, they are admitted to represent that word. So they receive Hen. for Henry, not because the man's name is Hen, but because Hen. is universally admitted to represent Henry. The state canvassers, then, do not confine themselves to names written or printed at full length, but they take abbreviations. Why do they receive abbreviations when the act says the ballot shall contain the name? The answer must be because the abbreviation is evidence of the intent of the voter. The intent of the voter is to be ascertained by the canvassers, not by examining witnesses or testimony of any description, except that which is inherent in the ballot itself. From this the canvassers adjudge that the abbreviation represents the word, which word represents the name of the person voted for."
In People v. Cook ( 8 N.Y. 67) it was held that the Board of State Canvassers act, in main, ministerially in making their certificates; "they cannot be charged with error in refusing to add to the votes for Benjamin Welch, Jr., those which were given for Benjamin C. Welch, Jr., and for Benjamin Welch. * * * Their judicial power extends no further than to take notice of such matters of public notoriety, as that certain well-known abbreviations are generally used to designate particular names, and the like." "They cannot hear evidence beyond the return to show the intention of the voters." This was an action of quo warranto, and it was there held that in that action the Supreme Court had power to go behind the certificate of the canvassers to ascertain the intention of voters in depositing their ballots.
In People ex rel. Derby v. Rice ( 129 N.Y. 461) it is held that "the office of a board of state canvassers is purely ministerial, no judicial powers are vested in them. They are simply authorized to compute the votes cast throughout the State and determine, upon statements made up from the returns of the boards of county canvassers, what persons have received the greatest number of votes, and upon the statements so made they must declare those persons to be duly elected. No other evidence may be received or used and no declaration may be made by such a board except as based upon a determination arrived at by the statements made up by it in an arithmetical manner from the various official returns before them." The opinion in part reads: "The plain reading of the words of the law must be followed, and that inevitably forbids us to entertain an opinion that any judicial powers are vested in the board of canvassers. The members convene, under the statute, to determine upon the statements, which they must make from the statements returned by the boards of county canvassers, what persons have been by the greatest number of votes elected to office. They are not, in any general sense, to determine. They must determine upon such statements as they have made up in an arithmetical manner from the various official returns before them. It is upon such statements, so made, that they must declare what persons have been duly elected. That is the evidence, and all of it, which the statute permits in connection with the election and a declaration by the board of canvassers of its results. No declaration can be made except as based upon a determination reached upon that particular evidence." And, further: "To imply the possession of a power to determine otherwise than upon the evidence, which the statute provides for; to invest this board, so manifestly created for the fulfillment of a mere ministerial function, with any judicial powers, would be counter to the plain terms of the statute." The cases last cited define the nature of the determination which is made by the State canvassers. In the statute, however, the same power of determination seems to be given both to the county and to the State canvassers, and that power has been held as ministerial only, and not judicial, and a power to determine only from the evidence apparent from the ballot itself.
Within the rules stated by these authorities we find no justification for the action of the county canvassers. It can hardly be claimed that Nat. Locke is an abbreviation for James N. Locke, or that James N. Locke is an abbreviation for Nat. Locke. There is nothing upon the ballots and no evidence before the board which can reach the dignity of any proof that those ballots were cast for the same person. There had been no nomination of any one by the name of Locke. These canvassers had no knowledge, as far as the records show, that there was such a man in existence as James Nathaniel Locke. When, therefore, the board of canvassers assumed to determine that the various ballots cast for James N. Locke, Nat. Locke, J.N. Locke and Nathaniel Locke, were all cast for James N. Locke they clearly exceeded their power, and the court properly ordered them to certify separately the several names voted for and the ballots cast for each. Upon the face of the return B. Frank Kathan had received a majority of the votes, and was entitled to the certificate of election from the board of canvassers.
It is true that by the affidavits it appears that there was only one man by the name of Locke who could have been intended, and that he was known by these different appellations, but neither the board of canvassers nor the court upon this application has any right to receive that evidence. The title of office cannot be tried in this proceeding. The power and duty of the court is to compel the board of canvassers to make the report directed by statute, and the ultimate rights of the parties can only be determined by an action in which the title to the office can be fully tried. The orders directing the two writs of mandamus were, therefore, properly made, and should be affirmed.
Appeal from order directing appellant to be made a party to this proceeding dismissed, with ten dollars costs. Orders directing peremptory writs of mandamus affirmed, with ten dollars costs and disbursements upon the one appeal.