People ex rel. Stapleton v. Bell — 119 N.Y. 175

Majority

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The People ex rel. Thomas Stapleton et al., Respondents, v. George H. Bell et al., Appellants.

Headnote

Inspectors of election are simply ministerial officers, and a board of inspectors has no discretionary power to reject the vote of a person who, upon being challenged and upon application of the statutory tests, has shown himself qualified to vote. When this is done the offered vote in legal contemplation is finally received, and must be deposited.

It seems the lawfulness of a vote cannot be determined until it has been received, and an elector’s right cannot be annulled without a trial.

In proceedings by mandamus to compel defendants, who were members of a board of inspectors of election, to affix their signatures to the election returns, it appeared that after the closing of the polls the inspectors counted the ballots cast and declared the result, but defendants refused to affix their signatures upon the ground that fraudulent votes were cast by persons who were not themselves registered, but who falsely person ating registered voters, upon being challenged, complied with statutory tests. Held, that it was the duty of the inspectors to count and return all the votes cast, and of each to attach his signature to the return; and that a peremptory writ was properly granted.

The affidavits presented in opposition to the motion for the writ averred that the fraudulent votes when offered were objected to on the ground that "the persons were challenged and sworn and their answers were unsatisfactory.” It was not denied, however, that the challenged voters complied with the statutory requirements. Held, that the said averment fell short of an allegation that full answers were not made, but meant simply that while full answers were made they did not satisfy the defendants; and that this did not warrant them, either in denying the rights of the voters, or in refusing to sign the returns.

The opposing affidavits alleged that the questioned "ballots were not received by the board or by a majority thereof.” Held, that it was not essen tial that the reception of the ballot of a challenged voter should be

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agreed to by a majority of the board ; that within the meaning of the, provisions of the General Election Law (art. 4, tit. 3, § 28, chap. 130, Laws of 1842, which directs that " when the board shall finally have received the ballot of an elector one of the inspectors * * * shall deposit it,” the ballot is finally received when the elector has satisfied all the statutory tests, and any inspector may deposit it.

Reported below, 54 Hun, 567 .

(Argued January 14, 1889 ;

decided January 28, 1889.)

Appeal from order of the General Term of the Supreme Court in the third judicial department, made November 26, 1889, which affirmed an order of Special Term granting a peremptory writ of mandamus.

The relators and the defendants were the members of the board of inspectors of election appointed for the ninth ward of the city of Troy. The defendants refused to affix their signatures to the election returns made for said election district, at the annual election held November 5, 1889, and these proceedings were instituted by the relators to compel them to perform that act. No issue is made as to any material allegation of fact in the moving papers; but the defendants allege that, fraudulent personations of registered voters were made at the; polls by non-resident and non-registered persons and such votes; were offered and were received, over their objection. They admit that after such persons were challenged they were sworn,, but say their “ answers were unsatisfactory,” and they allege; that the “ballots were not received by said board or by a. majority thereof.”

The peremptory writ of mandamios ordered at Special Term directed defendants to sign said returns.

The further material facts are stated in the opinion.

G. B. Wellington for appellants.

A board of inspectors is. not obliged to receive the ballot of a person not registered who falsely personates a registered voter. (Laws of 1842,. chap. 130, §§ 13, 28, .42, 44; Code, §§ 279, 299, 301; Laws of 1875, chap. 138; Laws of 1859, chap. 380; Laws of 1880,, chap. 576, § 6 ; Hyde v. Brush, 34 Conn. 454 ; Laws of 1872, chap. 570 ; McCrary on Elections [3d ed.], §§ 252, 312; People

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v. Pease, 30 Barb. 588 ; 27 N. Y. 045 ; State v. Robb, 17 Ind. 536 ; Laws of 1847, chap. 240, § 16; People v. Wilson, 62 N. Y. 195 , 197; Goetcheus v. Matthewson, 61 id. 420; People v. Boas, 29 Hun, 378 .) Inspectors of election, since the registry acts, have far more discretion than formerly. They are formed into a registry board before election and are then clothed with quasi judicial powers. (Laws of 1880, chap. 576, §§ 3, 6; Laws of 1883, chap. 508 ; People ex rel. v. Thatcher, 55 N. Y. 534 ; Bd. of Super. v. Paris, 63 Ill. 405 ; McCrary on Elections, §§ 539, 541.) This appeal may be heard. (People v. Phillips, 67 N. Y. 582 ; People ex rel. v. Walker, 68 id. 412; Laws of 1881, chap. 47, § 3; People ex rel. v. Keeler, 99 N. Y. 463 .)

R. A. Pa/rmenter for respondents.

The refusal by the ¡Republican inspectors of election to sign the returns, after the votes had been canvassed as required by the statute, was wrongful and contumacious. (Laws of 1880, chap. 56.) The defense against the motion for peremptory mandamus, as disclosed in the affidavits of the ¡Republican inspectors, shows conclusively that on election day they assumed to exercise judicial functions and powers not conferred upon inspectors of election by the laws of this state. (1 ¡R. S. [7th ed.] 338, § 28; Id. 387, § 22; Id. 384-388; Ex parte Heath, 3 Hill, 47 ; People ex rel. v. Pease, 30 Barb. 596 ; 27 N. Y. 45 ; People v. Cook, 8 id. 67 ; Goetcheus v. Matthewson, 61 id. 420; Kortz v. Green I. Co., 12 Abb. [N. C.] 84; 30 Hun, 217 ; People ex rel. v. Wayne Co., 12 Abb. [N. C.] 77; People ex rel. v. Reardon, 49 Hun, 425 -431; People ex rel. v. Thatcher, 55 N. Y. 530 ; People ex rel. v. McNally, 9 Abb. [N. C.] 470; People ex rel. v. Thornton, 25 Hun, 456 -460.) The court may compel the inspectors by mandamxus to sign the returns. (1 ¡R. S. [7th ed.] 388, 389, §§ 35-42, 44-48.) It is not alleged and does not appear that any person, offering to vote at said polls and who was challenged, refused to answer any question put to him after having first taken the preliminary oath prescribed by the statute. (1 ¡R. S. [7th ed.] 13-15, 386.) If the

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appellants on election day had fully discharged their duty there would be no excuse for their neglect to state in their affidavit the precise number of challenges made at the ninth ward poll, and the name given by such persons. (1 B. S. [7th ed.] 387, § 22.) The range of inquiry by inspectors of election has not been enlarged under the registry laws of 1880, which are now in force in the city of Troy, (laws of 1880, chap. 576, §§ 5, 6; People v. Pease, 30 Barb. 593 , 596.) The duty which the appellants, as public officers, refused to perform, was of a public nature. Mandamus is the proper remedy to command the execution of such public duties. (People ex rel. v. Daley, 37 Hun, 466 , 467.)

The record before us shows that the question which it presents has received a careful consideration in the courts below, and we might leave the discussion there, if it were not a question which, as concerning the powers of inspectors of elections in holding state elections, affects the right of suffrage, and, therefore, is of public interest. The precise claim of the appellants amounts to this, that those officers are clothed with a discretionary power to reject the ballot tendered by a proposed elector; notwithstanding he may have satisfied the tests prescribed by law, by taking the oaths and fully answering the questions put to him, if they doubt his identity with the registered elector, whose name he gives at the polls. In other words, that they may act, nevertheless, upon their own private opinions and knowledge. That claim arrogates to them judicial powers, and support for it must be found in the law regulating elections, either in express words, or as implied, from being necessarily incidental to the office and to the proper exercise of its duties.

The right of suffrage is one of the most valuable and sacred rights which the Constitution has conferred upon the citizen of the state. About it have been erected many safeguards, with the object of securing to each qualified elector the fullest and freest exercise of his constitutional privilege, and, also, of obtaining the greatest protection against the perpetration of

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frauds at the polls, which shall be consistent with a certainty that every person entitled to vote shall have his ballot received, deposited and counted. It may properly be observed in this connection that, in addition to the legal requisites, the public nature of the proceedings, through which the elector entitles himself to cast a ballot, and the public manner in which he presents himself to cast it at the polls, are features in our elections, which tend to minimize the possibility of false personations and of other fraudulent practices in elections.

I think it would be a far greater menace to the security of this constitutional right, if the' law regulating its exercise might prevent the vote of a citizen, duly qualified to east it, from being received and counted, than that some fraud might be practiced by a false personation. For, in the one case, there would be the disfranchisement of the elector; while, in the other, for the wrong done to the people, or to the individual, penalties and remedies are provided, and tribunals exist for their enforcement against a wrongdoer and for the establishment of the right.

There are no complex features in this case and it can be briefly stated. At the last general election in this state, the two relators and the two defendants composed the board of inspectors of election; the former being the Democratic and the latter the Republican members thereof. After the closing of the polls the inspectors counted the ballots which had been cast, and the results of the counting were thereupon, proclaimed. But to the election return, containing a statement of such results, the defendants refused to affix their signatures as required by law.

In opposition to the application of the relators for an order compelling them to sign the return, the defendants objected, in substance, that fraudulent votes were received during the election from persons falsely personating registered voters and who were not themselves registered; that upon their votes being offered their receipt was objected to; the “persons were challenged and sworn and their answers were unsatisfactory ;” that said ballots were not received by the board, or by amajority

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thereof, hut were taken and deposited by the relators in the ballot boxes, contrary to the protest of the defendants. It does not appear, however, that any minutes or record were made of such attempts, or objections; although the affidavit of the defendants states, somewhat indefinitely, that “ at least seventy fraudulent votes were offered at the polls.” The allegation was not put in issue by any denial and we must take it to be true. The gravity of the offense cannot be overrated and calls for the severest expressions of condemnation. Such practices are as dangerous to the rights of citizens as they are odious; and, when suffered to go unnoticed and unpunished, reflect disgracefully upon the community. If unchecked by punishment the electoral franchise is subjected to further attacks by dishonest partisans, emboldened by past immunity to themselves, or others, to affect the result of elections by fraudulent personations and other devices. But we are confined in our discussion here, to the legal question of what exercise of powers is permitted under the existing laws.

We must assume that the person, whose right to vote was challenged, submitted to all the statutory tests prescribed by the law in such cases, for the appellants concede that he was “ sworn” and only allege that his “ answers were unsatisfactory.” They did not claim that his answers were not full, or that he was disabled by reason of any conviction. Their position is that they had knowledge that persons offered ballots, who were not the registered electors they claimed to be and were not registered at all, and their argument is that, notwithstanding those persons satisfied the statutory tests, such questions are always outstanding for the determination of the board ; which only a majority can make.

I must say, that, to my mind, this claim is as unreasonable, as it is absolutely lacking in support in the fundamental, or in statutory law. It is repugnant to fundamental principles and to authority. I may fairly premise what brief discussion I may feel bound to enter upon, in connection with the law regulating elections in this state, with the remark, that if these appellants are right in their contention, then a way is made

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possible to perpetrate a great outrage upon the rights of electors. Under the present scheme of non-partisan boards of election inspectors, wherein the principal political parties in the state are intended to have equal representation, by a contumacious refusal of party adherents to sign an election return, based on the pretense that they were not satisfied in their.minds that all of the ballots taken were cast by qualified and registered electors, the disfranchisement of all the electors in the election district could be effected. They could prevent the reception of a ballot from a proposed elector, on their theory that a ballot is not finally received until by action of the majority of the board; for they would only have to oppose to the proofs required by the election law and made by the person, their mental convictions that, notwithstanding them, he was not the elector he swore he was. I do not, and cannot think such a result was ever intended, or can be fairly reached upon a consideration of the law. It is inconceivable that any such power should be lodged in election inspectors; or that they should be clothed with a discretion to reject a ballot offered by a proposed elector, whose qualifications, in case of challenge, are proved by the statutory methods.

The Constitution of the state provides that the citizen, fulfilling the stated conditions of age, citizenship and residence, shall be entitled to vote at the election ; and it is thereby left to the legislature to enact laws excluding persons from the right of suffrage, who have been convicted of bribery, or infamous crime, and for ascertaining by proper proofs the electors who shall be entitled to exercise that right. The legislature accordingly has enacted laws regulating the holding of elections, and therein have provided, as a prerequisite to the right of the elector to vote, that he should be registered before the day for holding the election. Registration is the method of proof prescribed for ascertaining the electors who are qualified to cast votes and the registers are the lists of such electors. It is a part of the machinery of elections and is a reasonable regulation, which conduces to their orderly conduct and fairness. It is one safeguard against frauds; for it is a

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means for furnishing all the electors of the district with the knowledge of what persons will claim the right of voting, a sufficient time in advance of the election for them to act upon it, if necessary. For the present purpose I shall only refer to the chapter of election laws, so far as portions of the law bear upon the phase of the question under consideration.

The ins|)ectors of election, in this j>articular case, were appointed by the board of police commissioners of the city of Troy, under the provisions of a special law. When appointed they had, of course, such duties to perform as are mentioned in the general laws regulating the holding of' elections. When the polls are open the first duty imposed upon the inspectors is for one of their number to receive the ballot tendered; for ■ the law provides (§ 7 of art. 2 of title 4) that each elector shall deliver his ballot “ to one of the inspectors in the presence of the board.” If, then, he shall be challenged as to his right to vote by an inspector, or by any other person entitled to object, an inspector shall tender him a preliminary oath, to the effect that he will “ fully and truly answer ” all questions touching his residence and qualifications as an elector. (§ 13.) Thereupon, questions of a certain prescribed nature are to be put to him and all other questions tending to test his qualifications to vote. (§ 14.) If he “ shall refuse to take the preliminary oath, when so tendered, or to answer fully any questions which shall be put to him, his vote shall be rejected.” (§ 15.) If he shall appear to the board from his answers to be deficient as to qualifications, it must be pointed out to him in what respect. (§ 16.)

In the present case the only claim is that the answers, after the persons were sworn, were not satisfactory. That certainly falls short of an allegation that full and true answers were not made. Of course, what is meant is that, while the answers were full, they did not satisfy, or remove a doubt in the minds of, the defendant inspectors as to the identity of the proposed electors. But, as the statute only requires the oaths and full answers to questions, if the person does that much, these provisions of the law do not warrant the exercise of judicial

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powers, under which the inspectors can still assume to deny the right of the proposed elector.

But, further, the law provides (§ IT) that “ if the person so offering shall persist in his claim to vote and the challenge shall not he withdrawn,” the inspectors shall administer to him a general oath, in which he states in detail that he possesses all the constitutional and legal qualifications. This second, or general, oath is a clear indication of alack of any discretionary power in inspectors to reject the vote of a person, even if he has failed to satisfy them as to his qualifications under the first oath prescribed. And it is provided with respect to this latter oath (§ 19) that “if any person shall refuse to take the oath so tendered, his vote shall be rejected.” This is significant language, for it is equal to saying that if he does take the oath his vote shall be received. I think that, plainly enough, these provisions, which have been referred to, in defining the cases, where a vote shall be rejected, impliedly exclude any othef case and deprive the inspectors of any discretion in the premises. Article 3 of title 3, treats of the duties of the board of inspectors and I. find nothing there, from which any such power can be implied, as is here claimed. It is there made the duty of each inspector to challenge every person offering to vote, whom he shall know or suspect not to be duly qualified as an elector. (§ 31.) But, when lie has done so, he cannot do more than put in operation the test system or machinery described. And the statute makes it the inspectors’ duty to keep a minute of their proceedings, in respect to the challenging and administering of oaths, and to make return of it; but that does not appear to have been done here either. (| 22.) But a point is made upon the wording of section 28 of the third article of this general election law. It reads that “ when the board shall have finally received the ballot of an elector ” one of the inspectors shall deposit it, etc., and it is argued that to be “ finally received by the board ” its reception must be agreed to by a majority of the members. The argument does not seem to me a sound one. The board has no discretion to reject the vote of a person who has satisfied the

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statutory tests, and when that is done, his vote must be deposited and that is the time when, in legal contemplation, it is finally received. The language of the section is divested of its technical, or literal, meaning by force and operation of the context and of the provisions in pari materia, which support and give reason for its existence. "Where a voter is challenged, there are several steps to be taken and things to be done by the inspectors, as well as by the voter, and which the statute had previously defined and commanded; so “ finally ” must be taken, obviously, to refer to the conclusion of the proceedings preliminary to the establishment of the voter’s right to have his ballot received and deposited. In mentioning the “ board ” this section cannot be deemed to indicate united, or majority action, if we are right in saying that they are ministerial officers, without the power of judging and deciding on their own opinions, when the voter has complied with the prescribed tests of the election law. Any inspector can deposit the ballot and it is received, in legal contemplation, by the board of inspectors when, after the elector has delivered his ballot to one of the inspectors, he has overcome a challenge by satisfying the statutory tests. The inspector has held the ballot delivered to him and after the tests are concluded, it is then legally deemed to be received. And how ? Why by force of the provisions of the act, as Judge ."Dentó says in People ex rel. v. Pease ( 27 N. Y. 45 ). If anything was left by the law to the judgment of inspectors, then there would be some force in the argmnent that they, or a majority of them, should determine by vote upon the rights of the j>i'oposed elector. But to say that the right of the elector to cast a ballot is subject to board action is equivalent to saying that they have power to decide upon the evidence as to the lawfulness of the vote. That cannot be so. That would permit of an elector’s rights being adjudged away and himself disfranchised, and on only such evidence as the statute prescribes. The lawfulness of a vote cannot be determined until it has been received, and an elector’s rights cannot be annulled without a trial, where he may have an opportunity of bringing forward his proofs

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and having them passed upon in a proper way and by a proper tribunal. To hold any other doctrine we would have to disregard the spirit of our laws and the fundamental idea of an electoral franchise. As was said by Mr. Justice Allen, who delivered the opinion at General Term in People ex rel. v. Pease ( 30 Barb. 588 ): “ They cannot summon witnesses or impanela

jury or give the party interested a hearing. They can examine the proposed elector under oath, and there their power and means of judicial investigation cease.” That this is the general sense with respect to this language is further illustrated by a reference to the “ Election Code,” a compilation of election laws, made under the authority of a concurrent resolution of the legislature, by the secretary of state. In section 704 it is said “ when finally received by the board, either without challenge or after a challenge has been so disposed of as to authorize the person offering the ballot to vote, it is required to be deposited by one of the inspectors without being opened, etc.” This direction does not contemplate action as a board, literally, for, if there is no challenge, certainly no such action would be called for. Then, again, it speaks of a challenge being disposed of so as to authorize the person to vote, and says that one of the inspectors is required to deposit the ballot. Such language is indicative of a legal duty or obligation, and not of an exercise of discretion, and is one which any inspector may perform. I do not think the doctrine ought to receive encouragement from this or any other court.

I think we cannot hold otherwise as to inspectors of elections than that they are, under the provisions of the election law, made ministerial officers wholly, for their duties are pointed out by the law definitely. They are only officers to execute the law in a prescribed and definite way, and to whom no latitude is allowed, when the proposed elector satisfies the statutory demands upon him for oaths and answers to certain questions. They are bound to an exact obedience of the particular commands which the law has laid upon them as its officers, and they may not act on their own opinions or knowledge. The duty of an inspector is discharged when he

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has required the challenged voter to submit to the tests prescribed. In support of the view that inspectors of election act ministerially and not judicially in holding elections and making returns, we have ample authority. As far back as the case of Ashby v. White (8 State Trials, 89, 130), Lord Chief Justice Holt’s opinion was given upon the nature of a returning officer’s office. That officer was a person to whom the instrument, under which the election was immediately held, was directed and who also was to make the return as to the vote. (Stephens on Elections, 74.) A majority of the lords in reversing the King’s Bench, which had sustained the action of the returning officer in rejecting a vote, agreed with the opinion of Lord Holt as to the want of judicial capacity in a returning officer. It was held (p. 130) “ that the officer is only ministerial in this case, and not a judge, nor acting in the judicial capacity, is most plain. His business is only to execute the precept to assemble the electors, to make the election by receiving their votes, computing their numbers, declaring the election and returning the persons elected.”

In People ex rel. v. Pease ( 27 N.Y. 45 ) the judges were unanimous on the point that inspectors acted ministerially; Denio, J., who delivered a dissenting opinion on other questions in the ease, disclaiming any reliance uj>on the judicial character of the inspectors, and remarking that “ if the inspector performs his duty by tendering and administering both oaths, the voter does not deposit his ballot by the permission or sufferance of the inspectors in any legal sense, but by the provisions of the act.” Judge Selden carefully discusses the question and reviews authorities, and I think his views are. most pertinent .here. He said that inspectors “ are required to act upon the evidence which the statute prescribes, and have no judicial power to pass upon the question of its truth or falsehood; nor can they act upon then* own opinion or knowledge.” The registry act was not in existence when that case arose, but Judge Selden took occasion to say, with reference to it, that (p. 69) “ if it had been it would not have changed the aspect of the present question. Its only effect in this respect is to

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require two oaths instead of one, making the oath equally conclusive in each case.” And in Goetcheus v. Matthewson ( 61 N. Y. 420 ) the Commission of Appeals reaffirmed the doctrine of the ministerial nature of the inspector’s office.

Judge Cooley, in his work on Constitutional Limitations (§ 617), treating the general subject of the elector’s rights, says that “ the oath is the conclusive evidence on which the inspectors are to act and they are not at liberty to refuse to administer it, or to refuse the vote after the oath has been taken. They are only ministerial officers in such a case and have no discretion but to obey the law and receive the vote.” He refers in support of his propositions to the People ex rel. v. Pease and to decisions in several other states.

Practically, the law leaves it to the conscience of the person offering to vote to decide whether he can or will do so, when his right is challenged. The inspectors cannot do more than to make use of the. machinery provided by the law to test the voter’s legal qualifications, and they cannot decide upon the truth, or falsity, of the answers to their questions. The law provides for the punishment of a person who falsely personates a registered voter, and the proposed elector, who is challenged for that cause, if he persists in his attempt to vote, may accomplish his purpose, but at the peril consequent upon false swearing and of false personation.

If, with all the safeguards with which popular elections are legally and naturally surrounded, frauds are perpetrated, the tribunals are open, and laws and a system of procedure exist, for the punishment of the offenders and for the rectification of consequent errors, in behalf of an individual whose legal rights are affected ; and legislative bodies are judges as to the qualifications, returns and elections of their members. The election return, or certificate, is not a conclusive proof of the right of a person to the office. It is nothing more than evidence of the right, and, like all other , proof, may be the subject of inquiry and of disproof. It is the statement of the whole number of ballots taken for each candidate for office, and that is its whole probative force, in an inquiry competently

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instituted with respect to the right of the person claiming office under the election returns. It is only primia facie evidence, and may be impeached and set aside for errors and frauds. ((People ex rel. v. Thacker, 55 N. Y. 525 .) Andrews, J., said in that case, that it was “ the disposition of the courts in this state, in election cases, to look through the formal evidence of the right to the right itself and to set aside the return of election officers when necessary to promote the ends of justice.”

If a person claiming the right to cast his ballot shows himself to be qualified to do so, by the application of statutory tests, he should not be deprived of that right by any action of the authorities, state or local. Ample means are provided for holding him for punishment, if believed and charged to be guilty of a violation of the law, and ample means exist for the rectification of the result affected by his acts. It follows that all votes cast must be counted and returned, and the signature by every inspector to the certificate containing the statement required by law, is obligatory upon him.

I have discussed this appeal at some length, but the public nature of the question is my warrant for doing so.

The order appealed from should be affirmed, but without costs.

All concur.

Order affirmed.

Cases cited

People ex rel. Smith v. Pease 30 Barb. 588 N.Y. Sup. Ct. 1860-01-03 p. 177, p. 185
People ex rel. Smith v. Pease 27 N. Y. 045 N.Y. p. 177, p. 184, p. 186
People ex rel. Gray v. Phillips 67 N. Y. 582 N.Y. 1876-09-26 p. 177
People ex rel. McDonald v. Keeler 99 N. Y. 463 N.Y. 1885-10-06 p. 177
Goetcheus v. Matthewson 61 N. Y. 420 N.Y. Comm'n App. p. 187
People ex rel. Judson v. Thacher 55 N. Y. 525 N.Y. 1874-01-27 p. 188