p. 562Westchester Special Term and entered in the office of the clerk of the county of Westchester on the 5th day of November, 1910, denying his motion to strike from the register of voters the name of George Bedwon.
Robert P. Beyer, Deputy Attorney-General [Thomas Garmody, Attorney-General, with him on the brief], for the appellant.
No appearance or brief for the respondent.
The only material fact, in the affidavit submitted in support of the motion to strike from the list of registered voters for the third election district of the town of North Castle, Westchester county, the name of George Bedwon as a voter, was that Edward A. Matthews, a Deputy State Superintendent of Elections for the metropolitan district, had examined the official copy of the registration list for such district, where the name of George Bedwon was enrolled, and that such register did not show any place of residence or other information as to the locality of the residence of said George Bed-won, as provided by section 156 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22). With this single fact before the court the motion was denied, and we should be content to rest our decision upon the opinion of the learned justice who presided at the Special Term were it not for the apparent doubt entertained as to the correctness of the determination.
The claim was made by the learned Attorney-General that it is to be presumed that the board of inspectors did their duty and that their failure to write in the place of residence of these alleged voters is to be attributed to the fact that such residences were not given or stated to them, and the learned court seems to assume that there is force in this contention, giving rise to grave doubts. But presumptions are indulged to supply the place of facts ; they are never allowed against ascertained and established facts. When these appear presumptions disappear. (Lincoln, v. French, 105 U. S. 614 , 617.) The facts were known here, and there was no room for any presumption of the kind suggested. Section 159 of the Election Law makes it the duty of the board of registration in districts where personal registration is .not necessary to “ place upon
p. 563the register the names of all persons who voted at the last preceding general election, as shown by the register or poll book of such election, except the names of such voters as are proven to the satisfaction of such inspectors to have ceased to be voters in such district since such general election, and also * * * they shall place on the register the names of all persons known or proven to the satisfaction of the inspectors to be then or thereafter entitled to vote at the election for which such registration is made.” The board of registration placed the name of George Bedwon upon the register, whether as one who had voted at the last previous general election or who was known or proven to their satisfaction to be entitled to vote does not appear, and at this point the presumption arises that they, as public officers, discharged their duty, and that no one who did not vote at the last previous general election, or who was not known or proven to their satisfaction to be entitled to vote, was thus enrolled. This is made the mandatory duty of the inspectors; they “ shall place upon the register the names of all persons who voted at the last preceding general election,” etc. The individual voter is not required to be present; he is entitled to be registered if he voted at the last preceding general election, unless it affirmatively appears that he has become disqualified; he is entitled to be registered if it is known to the inspectors, or proven to their satisfaction that he will be a voter at the next ensuing election, and it cannot be presumed that the inspectors have violated their duty in this regard and placed the name of a man upon the register who does not come within the requirements of the statute. This is the controlling provision of law—: the one which requires the inspectors to place upon the register the names of voters, and if the officers neglect or refuse to enter the name of any person entitled to have his name enrolled, summary power is given to compel such action. (Election Law, § 153.) The provisions of section 156 merely provide for the details of the register, and only inferentially make it the duty of the inspectors to prepare it; it tells how the register shall be made up, and what it shall contain, but it imposes no duty whatever upon the person whose name has been entered upon the register, and it would be very remarkable, in a State which provides in its Constitution (Art. 1, § 1) that “ Mo member of ‘this State shall be disfranchised, or deprived of any of the rights or
p. 564privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers,” that a person could be deprived of his right to vote from the mere fact that the board of election inspectors had failed to perform a clerical duty in connection with filling out the register of voters for a particular district. The voter not being required to do any act to be registered in small villages and towns where he voted at the last preceding general election — being entitled to have his name enrolled just because of that fact — would have no reason to go to the meeting of the board or to afford any information, and if he could be disfranchised simply because the board of inspectors failed to fill in the necessary details, it would clearly violate the letter and the spirit of the Constitution, and work great injustice.
The order appealed from should be affirmed, without costs.
Jenks, P. J., Hirschberg, Burr and Rich, JJ., concurred.
Order affirmed, without costs.