p. 536EXCEPTIONS taken on a trial at the Orleans circuit and ordered to be heard at the general term, in the first instance.
John H. White, for the relator.
I. The court erred in deciding that the six votes with pasters could not be counted for Gregory, and in refusing to submit to the jury the question as to the whole twenty-six; in deciding that Love was elected; and in dismissing the complaint. 1. “ The rules for conducting elections, contained in the statutes, are intended to afford all citizens an opportunity to exercise their right to vote; to preyent illegal votes, and to ascertain, with certainty, the true number of votes cast, and for whom. These are directory and not jurisdictional in their character.” (The People v. Cook, 8 N. Y. 68 , 86.) 2. “ The Supreme Court has power to go behind the certificate of the canvassers and the ballot box, to ascertain the intention of the voters in depositing their ballots, and to correct errors made by them.” (Id. 67-83.) Since the decision of the Cook ease, it has been considered as the settled law that the only question is, what was the intention of the voter in casting the ballot—to be ascertained like any other fact—not b.y his swearing to his intention, but by his acts and the surrounding circumstances. The mere statement of the proposition (to any person accustomed to the practice of political parties in their nominations, and to the manner of conducting our elections,) that two tickets were in nomination at a given election, and printed and circulated; that there were the names of the two nominees for the same office of supervisor printed on the tickets, and immediately below them, on the respective tickets, the names of two other nominees for the other office, of town clerk; that the several persons in nomination resorted to the usual mode of pasters to secure votes for themselves from the other party, and that twenty-six of the pasters of
p. 537one of the.candidates were pasted over the name of the opposing candidate, and in so doing, the paster covered, in some cases, a portion of the title to the office below, and in others the whole of that title ; shows conclusively the intention of the voter to vote for the man whose name he pasted, as against the name pasted over, and rebuts any idea that he designed to vote for two names for the same office, or to vote against the nominee for town clerk, though the title to that office was covered by the paster. Ho one can doubt but in all of those cases the voter intended to vote for Arnold Gregory for supervisor, and for John A. Raymond for town clerk, and the question is, whether this court will allow this plainly expressed intention to be defeated by any technical rule of law, or whether, in accordance with the dictates of right, truth and justice, they will make haste to discover some rule or principle of law to right this acknowledged wrong. We submit, "in all confidence, that the principles established in, or rather re-affirmed by the Cook case, enable the court to do this without violating any rule of law, technical or otherwise.Statutory rules for the conducting of an election, as we have seen, are merely directory; and they are directory and directing only to the boards of-canvassers, and not in any regard controlling, in the courts. The court goes behind the certificate, and behind the ballot box, to the voter, to ascertain by his acts, viewed in the light of the surrounding circumstances, what his intention was, for whom he intended to vote, and for what officers, and whether he intended to vote for but one man for the same office, or for two. Hence the rule, binding upon boards of canvassers, that when a ballot has upon it the names of two or more persons for the same office, when but one is to be elected, it is of no consequence in the courts, except as it declares a rule of evidence, that where two names appear upon the ballot in connection with the same office, it may be prima fade evidence that the voter in
p. 538tended to vote for two; but where, .from other circumstances' and acts, it is evident that this appearance is deceptive, and that the real intention was not thus to vote, the court will give effect to the real intention, as against the apparent intention. The one is the rule for canvassers, mere ministerial officers, the other for the courts, whose only aim is to ascertain the real facts of the case by the application of the ordinary rules of evidence.The judge at the circuit decided the case upon the authority of The People v. Seaman, ( 5 Denio, 409 .) In that . case “ it appeared that a ballot was found in the box which had on it the names of both the relator and the defendant, which was rejected by the canvassers. The defendant offered to show by a witness that an elector showed the ballot to him (the witness) with the name of .the relator upon it, and requested the witness to alter it by substituting the name of the defendant; and that the witness did thereupon insert the defendant’s name, but neglected to erase that of the relator. The judge excluded the evidence, and the defendant excepted.” The court, says the judge, “properly rejected.the proof which was offered in regard to the ballot which had upon it the names both of the relator and "the defendant.' The intention of the elector cannot be thus inquired into when it is opposed or hostile to the paper ballot which he had deposited in the box. We might, with the same propriety, permit it to be proved that he intended to vote for one man when his ballot was cast for another; a species of proof not to be tolerated.” This is all there is in-the case on that point, and the judge was undoubtedly right in rejecting the evidence ; for although it was not in conflict with the ballot, it added nothing to the force of the evidence presented by the ballot itself. It is a familiar rule that where a printed blank-—lease, contract, or what not—is filled up, and some sentence is inserted with a pen in conflict with some of the printed matter, the writing is to prevail over the print,
p. 541the court hold that the judge was wrong ip his rulings, and that as a matter of law (there being no conflict in the evidence,)' the relator should have been allowed the twenty-six votes, and the four double votes, or enough of either or both to overcome the defendant’s apparent majority of twenty-one votes, they should direct judgment for the plaintiffs.
Bullard & Glidden, for the defendant.
I. One of the ballots did not contain the name of the office to which the person was intended to be chosen, as required by the statute, and shpuld have been rejected for that reason. (1 R. S. 344, § 4.)II. The judge was right in rejecting the ballots with two names on them for the office of Supervisor. (The People v. Loomis, 8 Wend. 396 . The People v. Seaman, 5 Denio, 409 . 1 R. S. 133, § 12.) The case of the People v. Saxton, ( 22 N. Y. 309 ,) does not apply, because in that case there was- written evidence of the intention of the voter. The court says : “ His writing a name upon a ballot, in connection with the title of an office, is such a design nation of the name for that office as to satisfy the statute, although he omits to strike out a name printed upon it in connection with the same ofiice. The writing is to prevail, as the highest evidence of his intention.” It was the case of the construction of au instrument containing conflicting-written and printed matter, and the welljsettled rule was applied, that the writing must be adopted and the printing rejected. The ballot itself ftirnished conclusive evidence of what the voter meant. There was in reality but one name on it. In the present case, the ballots, as prepared and deposited by the voters, furnish no evidence whatever as to which person they designed to vote for. They intended to do just what they have done—to have the ballot read just as it does read. There is no evidence of fraud, mistake or inadvertence. Covering the words,
p. 542“For Town Clerk,” so they cannot be read, has the same legal effect as deliberately erasing them with a pen, or procuring ballots to be printed with the words omitted. Parsons, in his work on Contracts, (vol. 2, p. 6,) uses the following language: “ The rule of law is not that the court will always construe a, contract to mean that which the parties to it meant; but rather that the court will give to the contract the construction which will bring it as near to the actual meaning of the parties as the words they saw fit to employ,'when properly construed, and the rules of law will permit. Words must not be forced away from their proper signification to one entirely different, although it might be obvious that the words, used through ignorance or inadvertence, expressed a very different meaning from that intended. For if the words employed were those intended to be used, but their actual meaning was totally different from that which the parties supposed and intended 'them to bear, still their- actual meaning would, generally, if not always, be held to be their legal meaning.” A voter’s design to vote for a particular man is of no consequence, unless he designates the person, in some unmistakeable manner, so that others can tell, not what he meant to do, but what he did do. hieither court nor canvassers should guess ‘at a man’s intention, and then correct and amend his ballot, so as to carry out such, supposed intention. ,III. Rejecting the four double ballots and the one without a caption, and allowing all the rest for Mr. Gregory, and he has four majority. This is more than overcome by the illegal votes proved to have been given for him. (The People v. Pease, 27 N. Y. 45 .)This is an action substituted by the Code in the place of the writ of quo warranto, and was instituted to try the respective titles of the relator and
p. 543the defendant to the office of supervisor of the county of Orleans, for the town of Barre.
The defendant occupies the office, to which the relator claims that he, the relator, .was duly elected, at the annual town meeting of the town in April last. Issue was joined between the parties, and the action went to trial at the Orleans circuit, where the court ordered the complaint to be dismissed.
The facts upon which the question arises are substantially as follows : At the town election referred to, there were two tickets for town officers put in nomination by the voters of the town; one denominated the Republican, the other, the People’s ticket. The relator was the candidate for supervisor on the People’s ticket; the defendant vvas the candidate for the same office on the Republican ticket. All the ballots that were voted were printed. The Republican ticket commenced, and was in form, as follows:
“For Supervisor,
■ Ozro Love.
For Town Clerk,
John A. Raymond.
For Justice of the Peace, (Full Term,)
LeRoy R. Sanford.
For Justice of the Peace, (Vacancy,)
Henry M. Gibson.”
And so on, proceeding and stating in the same manner, and in addition" to the portion quoted above, the title of. various'other offices, viz., collector, commissioner of highways, overseer of the poor, assessor, constables, game constable, and inspectors of election for the three districts of the town. Under each of the titles was printed- a single name, except in the cases of the constables and the inspectors of election, and under each of those the number of names requisite to fill the offices specified were printed.
p. 544The “People’s ticket” was in the same form, with a designation, however, of different names for the respective offices.
Upon the canvass of the votes, twenty-six ballots were found consisting of the regular “Republican ticket’’with what is known as a “ paster.” These “ pasters” are narrow slips of paper with a name printed thereon, the back of the slip of paper being covered with mucilage for the purpose of conveniently applying them to a regular ballot, over a name upon it, and thus substituting the name on the printed slip for some name on the regular "ballot over which it is pasted. Each of the twenty-six votes above mentioned contained one of these slips having the name of Arnold Gregory, alone, printed upon it, and pasted over the name of Ozro Love. In other respects they were the' regular ballot known as the “ Republican ticket.” The “pasters” were pasted under the head of the words “ For Supervisor” at the head of the ticket, so as to cover the name of Ozro Love, and some of them wholly covered, and others partly covered the words “ For Town Clerk,” which was printed on the ballot below the name of Ozro Love, and above the name of John A. Raymond; so that in the cases where the whole of the -words “For Town Clerk” were covered by the “paster,” the vote with the “paster” purported to be as follows :
“For Supervisor,
Ozro Love.
John A. Raymond.”
By holding the ballot up to the light the words “For Town Clerk” could be read through the paster, in the space between the names of Ozro Love and John A. Ray-, mond. .On one of the ballots which contained these “ pasters,” the paster nearly covered up the words “ For Supervisor.”
The board of town canvassers declined to allow either
p. 545Love or Gregory any of the twenty-six ballots on which the name of “ Arnold Gregory” was so pasted, and which covered the whole or any part of the words
“ For Town Clerk,” upon the ground, as is conceded, that they designated the names of two persons, namely, Arnold Gregory and John A. Raymond for the office of Supervisor. This decision was’ sustained by the court, on the trial, as to all ballots where the paster covered the whole of the words “ For Town Clerk.” If these votes counted for the relator, he was elected to the office in question.
We think the judge at the circuit committed an error in holding as a matter of law, that the- ballots rejected by him for the cause stated, could not be allowed to the relator. Since the decision of The People v. Saxton, ( 22 Wend. 309 ,) and The People v. Cook, ( 8 N. Y. 67 ,) it has been considered settled, that on the trial of a quo warranto, where the question as to who was elected to a particular office, and what was the intention of certain ballots, is investigated before a jury, the court and jury are not confined within the narrow limits which control the boards of canvassers, who have no power to take evidence aliunde the ballot itself, for the purpose of elucidating any apparent ambiguity on its face, or any apparent incongruity between it and the surrounding circumstances. It was expressly held, in The People v. Saxton, (supra,) that the decision of the inspectors of election rejecting a ballot as designating the names of two persons for a single office is not conclusive, but upon quo warranto the question as to the voter’s intention is open to inquiry by the jury. And in that case it was held, where a name was written upon a printed ballot in connection with the title of an office, that the written name was to be counted for the party whose name was written, although a printed name for the same office, on the same ballot, was not erased. And this was held as a matter of law, upon the ground that where an instrument contains both writing
p. 546and printing, and the two appear to.be inconsistent, the written words afford the best evidence of the intention, and accordingly that in that case the writing of the name afforded conclusive evidence of the intention of the voter to cast the ballot for the name that was written, and that the omission to erase the printed name was accidental. The same principle, we think, applies to this case. The acts of the voter are to receive a reasonable construction, in view of the surrounding circumstances.
[Fourth Department, General Term, at Rochester,
September 10, 1872.
The placing of a paster containing one name, over another name, indicates an intention to substitute one name for another. If it be placed over another name which is under the title of an office, it indicates an intention to substitute for that office the name upon the “paster.” If it be done in such a manner as to afford any ground for doubt, whether the voter intended to designate two persons for the same office, we think that doubt may be safely left to be solved by a jury, in view of all the facts, the appearance of the ballot and the surrounding circumstances.
In this case, we are of th'e opinion that the facts should have been submitted to the jury, for them to determine whether the pasted ballots in question designated two names for the same office, or were only intended to substitute the name óf the relator for that of the defendant for the office of supervisor. '
A new trial must be ordered, with costs to abide the event.
Johnson, Barker and Talcott, Justices.]
p. 551at a General Term in the Fourth Department, held January 7, 1873. Mullin, Talcott and E. Darwin Smith, Justices.]