People ex rel. Nichols v. Board of County Canvassers

The Supreme Court has awarded a peremptory writ of mandamus, directed to the board of supervisors of Onondaga county as a board of county canvassers, commanding them to reject and exclude from their statement and computation of the votes cast for Bufus T. Peck, in that county, for the office of senator for the 25th senatorial district, composed of the counties of Onondaga and Cortland, at the last general election held on the third of November last, certain ballots cast in the nine election districts hereafter mentioned. This appeal is brought for the purpose of a review in this court of the order granting the writ. It was made upon the application of the relator on a state of facts, as to which there is no dispute, and the question is one of law regarding the power of the court. It appears from the record that certain ballots were cast at the election for Bufus T. Peek for the office of senator in first election district of the town of Camillus upon which was the following indorsement: “ Official Ballot for Second District Poll, town of Camillus,

In the first district of the town of Olay ballots were cast for him indorsed for the second district, and in the second district indorsed for the first. In the first election district of the town of Tully ballots were cast for him indorsed for the second district, and in the second district indorsed for the first. In the first election district of the town of Elbridge ballots were cast for him bearing the indorsement for the thwd district. In the second election district, of that town ballots were cast for him indorsed for the first district, and in the third election district indorsed for the first. In the first and second districts of Camillus and the first and second districts of Clay the same facts existed, in regard to the indorsement of the ballots for member of assembly for the first assembly district of Onondaga county. The ballots were prepared and printed by the county clerk, whose duty it was, under the statute, to deliver to the town clerk of each town the ballots for the several election districts in such town; but how they became transposed, in the manner above described, does not appear. Four different official ballots, containing the-names of the candidates of the four different parties that had made nominations and filed certificates thereof, in compliance with the law, were delivered to the inspectors of election in all these districts, and were in use at the several polling places on the day of the election. What was known as the Republican official ballot, containing the names of the candidates of that party for state, county and legislative offices, was the only ballot used and voted that did not contain, in the indorsement, the proper number and designation of the polling place or election district where it was voted.

On the hearing of the relator’s application at Special Term, Rufus T. Peck, upon his own application, was permitted to intervene and was made a party to the record on the ground

The question now before us is whether those citizens of Onondaga county, who used the ballots, which the canvassers in this case have been ordered by the Supreme Court to reject,

This was so apparent and was regarded as of so much importance in the successful operation of the law that the legislature carefully prescribed the form of the indorsement to be used upon all ballots at the same polling place in the following language: “ On the back of each ballot shall be printed in type known as great primer roman condensed capitals the indorsement ‘official ballot for-,’ and after the word ‘for’ shall follow the designation of the polling place for which the ballot is prepared, the date of the election- and a fao simile of the signature of the county clerk. The ballot shall contain no caption or other indorsement, except as in this section provided.”

This provision plainly requires that upon all the official ballots used at any polling place, there shall be printed in the •manner therein described, the same indorsement, and consequently that the designation or number of the election district in the indorsement shall be precisely the same and, in all cases, that designation or number shall be that of the polling place or election district where the vote is offered, and no other. The ballots in question were cast in utter disregard of this important provision of the statute, as the indorsement did not in any case contain the designation or, number of the election district where they were voted, but did contain the designation or number of another district, where they were not used. The indorsement upon them differed from the regular indorsement on all the other ballots used or voted at the same polling place, and as they were used or voted by but one of the parties that had made nominations or, in other words, in behalf of but one candidate or set of candidates, the voters who used them necessarily disclosed to the election officers, watchers and such of the bystanders as could and desired to observe, the candidates voted for, and thus not only the letter of the statute was disregarded, but its very purpose and intent defeated.

It cannot be denied that anyone who saw the indorsement

“ The fifth and last point turns on the construction of the by-law before mentioned. The tickets in favor of those persons who succeded in the election had on them the engraving of an eagle. The judge who tried the cause charged the jury that those tickets ought not to have been counted. The case is certainly within the words of the law. The tickets had something more than the names on them. But is it within the meaning of the law ? I think it is. This engraving might have several ill effects. In the first place, it might be perceived by the inspectors even when the ticket was folded. This knowledge might possibly influence him in receiving or rejecting the vote. But, in the next place, it deprived those persons who did not vote the German ticket, of that secrecy which the election by ballot was intended to secure for them. A man who gave in a ticket without an eagle was set down as an anti-German, and exposed to the animosity of that party.”

In West v. Ross ( 53 Mo. 350 ), the statute provided that “ no ballot not numbered shall be counted,” and the question arose as to whether ballots cast for a successful candidate for county clerk, not numbered, should be excluded from the count. It was conceded that no fraud was intended by the inspectors in failing to number the ballots, but it was occasioned by an inadvertance on their part. It further appeared

“ This case may be a hard case, and doubtless is; but the legislative enactment is clear, and although it may deprive a portion of the citizens of the county of their right to be heard in the election of a clerk at one election, it is better that they should suffer this temporary privation than that the courts should habituate themselves to disregard or ignore the plain law of the land in order to provide for hard cases.

“In the present case, the legislature has provided and required that the ballots should be numbered, and then provides in express terms that no ballot not numbered shall be counted. Can we say that such ballots shall be counted without an attempt at judicial legislation 1 I think not, and it would be a misapplication of terms to say that such a statute is only directory.”

In Oglesby v. Sigman ( 58 Miss. 502 ), an application was made for a mandamus to compel canvassers to reassemble and xecanvass votes east fox member of congress, and to reject ballots claimed to be illegal, by reason of the fact that they contained certain marks and devices prohibited by statute. The statute provided that the ticket should not contain any “ device or mark by which one ticket may be known or distinguished from another,” and that a “ticket different from that herein prescribed shall not be received or counted.” The court held that ballots marked in violation of the statute were void, and in the opinion, it was said : “ We think the effect of ■section 137 of the Code of 1880 is to condemn as illegal, and not to be received or counted, every ballot which has on its back or face any device or mark, other than the names of persons, by which one ballot may be distinguished from another. This statute does not condemn devices or marks on the outside of a ballot merely, but clearly embraces the face of the ballot as well. That is apparent from the exception contained in it, and a device or mark on the face of the ballot is as

It has been held upon similar grounds that a ballot printed upon colored paper in violation of a statute requiring them to be printed upon white paper, was void. (State v. McKinnon, 8 Oregon, 493.) And that a ballot was properly rejected which did not conform in length and in other minor respects to a statute prescribing the form of ballots to be used. (Reynolds v. Snow, 67 Cal. 491 .)

In Connecticut, under a recent statute, in many respects similar to ours, the official ballot contains the name of the political party using it. At a municipal election, eighty-six ballots were cast containing the caption -“Citizens” at their head, but were in all other respects the same as the Republican ballots, including the candidates’ names. But as there was no party in the city known as the Citizens party, it was held that these ballots were void and could not be counted. In that case, the statute prescribed the form of the ballot which is to contain among other things “ the name of the political party issuing the same,” and then provided that “ all ballots cast in violation of the foregoing provisions, or which do not con

The reasoning of the court by which that conclusion was reached is applicable here. (Talcott v. Philbrick, 59 Conn. 472 .) Other cases could be cited which hold the principle that ballots cast by electors, not conforming to the provisions of a statute intended for the purpose of securing secrecy, and which reveal the contents, or render it capable of subsequent identification, are void by force of prohibitions in the statute against receiving and counting them in substance the same as is to be found in the statute under consideration. (Field v. Osborn, 21 Atl. Rep. 1070 ; In re Vote Marks, Id. 962; Ledbetter v. Hall, 62 Mo. 422 ; Perkins v. Caraway, 59 Miss. 222 ; State v. Calhoun, 61 id. 556.)

We think that these ballots cannot be counted without weakening or breaking down provisions of the statutes which, in view of its general purpose, must be regarded as vital. For these reasons, the order appealed from should be affirmed.

While I concur in the opinion delivered by my associate, Judge O’Brien, I have thought it proper to state in my own language the line of thought which has led me to the conclusions reached by a majority of the court.

I regard this case as one of primary importance, not so much perhaps from the effect that its decision may have upon the interest of the individuals engaged in the controversy or the temporary prospects of political parties, but from the permanent influence which it will exercise upon the cause of ballot reform, which has in recent years shown itself so strong in. the regard of the people, and vindicated that favor by the success which has attended the enforcement of the reform legislation of 1890 and 1891.

It cannot be disputed but that in the initiation of the movement for ballot reform there was much difference of opinion in regard to the propriety of the laws proposed, and much fear expressed in respect to their operation, and I must confess that I was among those who regarded the result as doubt

We have, however, now had two years of experience under these statutes, and it seems to me that many of those who originally opposed the law have become reconciled to its operations, and a great change has come over the popular mind in regard to its beneficial effects. I think that it will now be generally conceded that the influence of these laws, if fully and impartially enforced, will practically prevent bribery at elections and restrain the power of extraneous influence over the mind and conduct of the voter in the exercise of his political rights within healthy limits. Any decision, therefore, of this court which would tend to materially hamper the beneficial operation of these laws and relegate the question of ballot reform to its original position, will, I think, prove a serious misfortune to the country, and the source of great regret to every thoughtful and conscientious citizen.

I think that but few will dissent from these views or from the further proposition that any determination of the question before us which will prove an embarrassment to the cause of ballot reform should be most earnestly deprecated and avoided if the language of the statutes will permit of another result.

The issues involved in the present controversy, as presented on the argument, is the claim made on one side that these proceedings were on the part of the relator to change the political complexion of the senate of the state by forcing a candidate into an office to which he was not legally elected, and the assertion on the other that the candidate opposed to the relator, although having an apparent majority of the votes cast, secured that majority only by counting in his favor illegal ballots procured through intimidation and the exercise of unlawful influence over the minds and conduct of the voters at the polls. The question, therefore, which lies at the foundation of the controversy is who had a plurality of the legal ballots cast at the election in question, and as that question

The facts, having been agreed upon by the parties, are simple and undisputed. The twenty-fifth senatorial district consists of the counties of Onondaga and Cortland, and contains a voting population of about forty thousand. The canvass of votes showed that Peck, the Republican candidate for senator, received in the county of Cortland a plurality of seven hundred and seventy over Nichols, his Democratic competitor, and in Onondaga county, Nichols received a plurality of three hundred and eighty-eight over Peck, thus showing an apparent plurality for Peck of three hundred and eiglity-two votes. The total vote for Nichols in Onondaga county being fifteen thousand seven hundred and fifty-nine, and for Peck, fifteen thousand three hundred and eighty-one, Among the ballots thus counted for Peck were twelve hundred and fifty-two which were, when voted, indorsed with a number which did not correspond with the number of the district in which they were cast, or with the number which was indorsed upon all other ballots cast in the same district at that election. These obviously illegal indorsements were found only upon Republican ballots, and were made upon all of the ballots cast for Peck in the several districts named. These were the first and second of the towns of Olay, Camillus and Tully, respectively, and the first, second and third of the town of Elbridge, and being,' as I infer, all of the election districts in the several towns named.

These facts appeared upon the face of the returns made to the county canvassers, and these votes were allowed to Peck by that board under the only canvass permitted to be made by it pursuant to the express requirement of an order of a Special Term of the Supreme Court.

No explanation is furnished by the papers as to how the transposition of ballots occurred, nor are any facts stated from which it can .be conclusively inferred that it was innocently produced. On the contrary, in my judgment there is the strongest evidence in the case tending to show that they were

It is quite obvious, therefore, that the respective packages were put up in the county clerk’s office, and addressed not only to the respective districts for which they were intended by the county clerk, but all those intended for a particular town were embraced -in a single package addressed to the town clerk. These packages were all sent out duly addressed, and reached their respective intended destinations.

In the several election districts referred to, however, the inspectors of election, upon opening the packages addressed to them on the morning of election, discovered that the Republican ballots inclosed in the packages were all indorsed with an erroneous district number, while all other tickets contained in the same packages were properly indorsed.

No effort appears to have been made by the inspectors to correct this palpable violation of law, although within the limits of a small town it could apparently have been accomplished in a comparatively short period of time, by an exchange with the districts whose ballots had also been erroneously distributed. But the election was deliberately proceeded with, and the ballots cast in all of the towns and districts named were taken under circumstances which obviously exposed the polit

It is strenuously urged by the appellant’s counsel that these transpositions were inadvertently made. This contention is obviously immaterial. But I think there is little in the circumstances to render sucli a claim either plausible or probable. In preparing the packages the persons superintending the operations must have selected with care and accuracy the ballots prepared for the candidates of the Democratic, Prohibition and Socialistic parties, and correctly assigned them to the proper district. They must also then have selected the Republican ballots designed for the several towns having two districts and put those prepared for the first district into the package sent to the second, and those designed for the second district into the package sent to the first district. This could only have occurred 'by rejecting the package properly marked, and selecting another package obviously designed for another district. This was done in six districts and involves the happening of twelve simultaneous mistakes of a similar character, to produce the alleged inadvertent transposition of votes.

The work of transposing the votes of the town of Elbridge was a more complicated transaction and required some calculation to make it successful, as there were several districts to be- affected. This, however, was done by sending to the first district those ballots designed for the third, to the second those designed for the first, and to the third those prepared for the second; and thus each district secured its full complement of votes, but they were each marked so as to advertise, when cast, the contents of the ballot.

It is quite significant also that this is the only county of the state in which such mistakes occurred, and that it occurred only with the ballots of' a single one of the four parties whose ballots were handled by the officers charged with the duty of making the distribution of ballots. No explanation is made by the county' clerk of the manner in which this result was effected, except by the affidavit of a subordinate in his office, who testifies substantially that he superintended the distribu

Such is the only explanation offered by the officers implicated to account for the apparent perpetration of a great crime, through which one political party was in nine election districts of the county enabled to disregard the wholesome restraints of the Ballot Reform Law, and reap the advantages to be derived therefrom.

That a crime was committed by some one having in charge the distribution of the ballots for the several towns referred to, cannot be the subject of reasonable doubt. Among those officers the duty of the county clerk is the most important. He is charged with the whole duty of preparing the ballots for printing, overseeing their’publication, assigning the towns and districts to which they are to be sent, and effecting their proper distribution. The importance of a strict and conscientious performance of his duties cannot be overestimated, as any mistake or carelessness on his part is sure to involve the most' serious consequences to the cause of good government and the administration of its laws. It is, therefore, that all of the duties to be performed by him are most carefully and minutely defined by the law, and it is especially provided by the act that “ every public officer upon whom any duty is imposed by this act who violates his said duty, or who neglects or omits to perform the same, shall be deemed guilty of a mis demeanor,” and subject to fine or imprisonment (§ 34, ch. 262, Laws of 1890, as amended), and any person who shall forge or falsely make the official indorsement of any ballot shall be deemed guilty of a felony (§ 32, ch. 262, Laws of 1890).

That these sections have been glaringly violated is made apparent by the conceded facts, and while the actual offender

It is claimed by the appellants that the political party whose ballots were thus transposed could have had no improper motive in effecting such transposition. It would seem to be a sufficient answer to this suggestion to say that the act does not regard the motives of those who violate the law by improperly indorsing ballots, but condemns the act and prescribes the punishment for its commission, whatever may have have been the cause or motive for its perpetration. It imperatively requires that every ballot cast (with an unimportant exception) shall be of the same shape, size and color and have the same indorsement. The purpose of the act seems to require that these provisions should be held to be mandatory, and that a disregard of them upon any pretense whatever should constitute a violation of the law, and cause a forfeiture of any benefits sought to be derived from such illegal ballots. The vigorous enforcement of these penalties constitutes the principal mode by wdiich obedience to the law. was expected to be secured. But let us look further at the motives which may reasonably be supposed to have actuated the minds of the parties charged Avitli the duty of handling these ballots, by their unlawful manipulation. ¡

It appears from the votes cast, that Hr. Nichols received a large Republican vote in Onondaga county. The court can take judicial notice of the facts appearing in the public records of the state. They shoiv that Onondaga is a Republican county, and for a long series of years has given a plurality of votes for that party varying from íavo to four thousand votes at each election. At this election, however, it gave a considerable plurality for the Democratic candidate. It is, therefore, obvious that for some weeks preceding the election there must have been evidence of a popular current which threatened a defection from that party and consequent accessions of strength to the ranks of its opponent.

It is evident that if such practices are permitted under the law, the purpose of the act to shield the voter from obnoxious supervision and observation while exercising the right of elective franchise is practically defeated. We are now brought to the crucial question presented by the situation, which is as to the disposition to be made by the canvassers, under the law, of the votes thus illegally cast.

The language of the act on this subject is plain and unambiguous, and furnishes a full and conclusive answer to the inquiry which no ingenuity can obscure or evade. The statute says that “ No inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day any ballot which is not properly indorsed and numbered, except in the cases provided for in section twenty-one of this act, nor shall any inspector of election deposit in a ballot-box, or permit any other person to deposit therein on election day any ballot that is torn or has any other distinguishing mark on the outside thereof.” (§ 29, ch. 262 of Laws of 1890, as amended by the Laws of -1891.) And further, that " no ballot that has not the printed official indorsement shall ' he counted, except such as are voted in accordance with section twenty-one of this act.” (§ 31 of the amended act.)

No claim can be seriously made that the ballots in question were cast in accordance with section twenty-one of the act, and they, therefore, necessarily fall under the absolute and' unqualified prohibition which is directed against the

The act provides that no ballots not properly indorsed shall be received, or if received, shall be counted. This result must necessarily follow the commission of the prohibited act, whatever may have been the ignorance or intention of the voter or any other person connected with the act of voting, for the canvassing officers are imperatively directed not to receive or count the improperly indorsed ballot. No investigation is required or permitted by the inspector into the motives of the voter or those who prepared the ballots for him; but without inquiry, upon the mere inspection of the ballot, the inspectors are required to take affirmative action rejecting it, and if for any reason that duty has been omitted at the polls, they are required to refrain thereafter from canvassing or counting such ballots.

It cannot, of course, be successfully contended that under the language of this statute any board of canvassers, before whom the facts lawfully come, and who are vested with the duty of canvassing votes had any authority in law to count these illegal ballots, and it was, therefore, practically decided in our deliberations, by a unanimous court, that unless some change was made in the language of the statute, these votes must be rejected.

Some of the members of the court are of the opinion that the statute may properly be read as though the word “ unofficial ” had been inserted in the quoted sentences before the word “ ballot,” wherever it occurs, so that the words of exclusion shall apply to unofficial ballots alone. This interpolation of a word is deemed to be justified by the alleged injustice which would otherwise be inflicted in this case by the disfranchisement of upwards of twelve hundred voters. The conclusive answer to' this claim is the fact that the interpolation defeats the plainly implied intention of the law makers and destroys the sole beneficial purpose of the act. It is among the most primative rules of construction that the office of interpolation is to carry out the intention of the law makers

What was the obvious purpose of this statute? It is expressed in language that permits of no doubt as to its meaning, and is revealed not only by its title, but breathes in every line and word of its forty-six sections. The title declares it to be “ An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.” The body of the act shows by manifold provisions that this purpose is to be accomplished only by the inviolability with which the conscience and intention of the voter is guarded while exercising the right of suffrage, from the observation and scrutiny of others. It cannot, therefore, be reasonably claimed that it was within the purpose of the law makers to permit a voter, whether casting an official or an unofficial ballot, to reveal at the polls in any manner or on any pretense whatever the character of the ballot which he proposes to cast.

Let us, therefore, consider the effect of the suggested construction of this statute. It plainly assumes to limit its application to unofficial ballots, and thereby to exempt from its operation all official ballots. Ballots by the law are designated as official and unofficial, and are expressly defined by various sections of the act. Those designated “unofficial” are described by section twenty-one of the act, and are ballots authorized to be printed by a town or city clerk only when the ballots required to be furnished by the county clerk have not been delivered, or after their delivery, have been lost or destroyed. In case such ballots are not furnished by the town or city clerk in time, or the supply of ballots become exhausted before the polls are closed, each elector may furnish his own ballot. These ballots, however, are required to be without indorsement. All other ballots are official. It is apparent then that the ballots in controversy were not in any sense unofficial ballots, and were not attempted

It is obvious that the use of unofficial ballots must be exceptional in any case, and was allowed only to guard against an improbable, yet possible, contingency, but was not intended by the law makers to play an important or even usual part in the, conduct of an election. In fact, I think that it must be assumed that the occasion has never arisen in this state when the use of an unofficial ballot has been required. If it had, that fact Avould undoubtedly have become notorious. Is it reasonable, therefore, to suppose that the legislature intended its elaborate, carefully considered scheme of ballot reform to apply to a mere incident of an election rarely if ever liable to occur, and to leave the great evil, which dominated the entire country and infested every polling place throughout the state, to rage without regulation, restriction or cpntrol? It would amount to saying that the leading and most effective provision of the statute containing its only operative clauses should be emasculated and turned into a provision having no practical effect or operation, whatever. A most unjust and mischievous construction would be thus given to the law, for it would apparently authorize the improper indorsement of official ballots, and although so marked and distinguished as to reveal their contents, would nevertheless permit them to be counted.

The law so construed leaves the candidate confessedly elected by illegal ballots, to avail himself of their aid in entrenching his position so that, if he can ever be dislodged therefrom, it can only be when the lawfully-elected candidate is, in the remote future, enabled to prove the agency whereby tlie illegal transposition of ballots ivas accomplished, and the secret intent with which it was done. An act leading to such results might, Ave believe, be more appropriately termed a statute to encourage the violation of the right of elective franchise, than one to protect and purify it.

A further answer to the construction contended for is found in the provision which prohibits any indorsement whatever

A construction of a statute which changes its language so as to exclude the only subject upon which it can operate, and confines its provisions to one which will never probably occur, is without a parallel in the history of jurisprudence. Mb words can sufficiently express the surprise with which an original ballot reformer will learn that the only object sought by him in his struggle for ballot reform was the exclusion from the ballot-box of a ballot which could never get there except by an improbable accident.

A few words more upon a point to which I have already adverted ■—the claim that a literal construction of this act would result in the disfranchisement of many voters. Those voters are termed innocent, well-meaning and apjxaremtly unconscious instruments in the proceedings which resulted in ■placing in the ballot-boxes of Onondaga county upwards of twelve hundred illegal votes. Why they are thought to be entitled to these descriptive appellations, I am unable to understand. The law expressly forbids every voter from revealing to anyone in the polling-place the name of the candidate for whom he intends to vote, or to show his ballot after it has been prepared in such manner as to reveal its contents, and in case of a violation of these provisions, he is deemed guilty of a misdemeanor. (§ 35, Laws of 1890, amended 1891.)

Can a voter, who deposits a ballot revealing plainly and conspicuously the names of the candidates for whom he intends to vote, claim to be innocent of a violation of these requirements? These voters most certainly cannot be said to be ignorant of the provisions of the law under which they are exercising their franchise, for the law itself requires that they shall inform themselves of its requirements respecting the form and character of the indorsements made upon their ballots,

But it is urged that a strict construction of the law must result in disfranchisement. This is true, but the law plainly contemplates such a result, and who can complain, except those who are opposed to any restrictions whatsoever upon the action of an elector ? No advocate of the Reform Ballot Law can justly Criticise a result which was in the minds of its authors when the law was drafted and enacted. They clearly contemplated this effect, and determined that the injustice which a few might suffer through ignorance, willful blindness or inattention to the requirements of the law, should not be permitted to defeat the great good to be secured to the whole people by the adoption of an effectual scheme for the purification of' elections. Can it then be seriously contended that voters may knowingly refuse obedience to the conditions imposed by the

In accordance with these views, I think the orders appealed from should be affirmed, and the illegal ballots excluded from the computation of votes cast.for senator.

In these proceedings, which have reference to. the correctness of orders of the Supreme Court in directing, by a writ of mandamus, that the board of canvassers of Onondaga county correct their returns or statements, and that they exclude, in their computation of votes, those cast for Rufus T. Peck fqr senator, and for Patrick J. Ryan for assemblyman, in certain election districts, I propose to state, as briefly as possible, the reasons which influence my vote in affirmance of the,orders below.

The question is whether certain ballots cast in the several election districts in question, which did not bear the official indorsement required by section 17 of chapter 262 of the Laws of 1890, as amended by section 6 of chapter 296 of the Laws

The words of section 31 of the Ballot Reform Law are explicit: enough to remove, the possibility of misapprehension upon the subject of what shall be counted. It reads : “ The votes for the several candidates shall be canvassed in the order in Avhich they appear upon the several ballots. No ballot that has not. the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of section 21 of this act.” The reference here is to unofficial ballots, which may be printed or written, where the official ballots have been lost, destroyed, are not ready, or have been exhausted; or whenever a candidate for office shall have died, or withdrawn* or shall be ineligible; in which cases such an unofficial ballot may be used.

When later, in section 31, it is provided that “said ballots shall be counted in estimating the result,” etc., but may be contested in a mandamus proceeding, in the section provided for, the ballots referred to unmistakably mean, as the context plainly sIioavs, those which have been marked in any way for identification and, therefore, have been Avritten upon by the inspectors of election for the purpose of raising the question of their legality. This later provision, which I have mentioned, was added in the amendment of the laAv in 1891, and was aimed at marked ballots. The original law prohibiting the counting of ballots not bearing the proper official indorsement Was not altered or affected.

The official indorsement, so strictly required to exist, is prescribed in section 11 of the act, and by its terms each ballot’s indorsement must be printed with a certain type, and shall read “ official ballot for,” and after the Avord “ for ” shall follow the description of the polling place for which the ballot is.

The argument that, for the lack of ballots properly indorsed ■as required by the law, those not properly indorsed may be voted as unofficial ballots, as provided in eases mentioned in section 21, and which I have mentioned, is not, to my mind, ■at all satisfactory, and I consider it an answer to say that these ballots which were used and which were the subject of consideration below, purported to be official ballots and bore an ■official indorsement, and that the conditions for the use of unofficial ballots did not exist. So scrupulously has this law endeavored to preserve absolute secrecy as to the ballot deposited, that it provides for the nullification of a ballot which is so marked as to be capable of identification in any way. The reading of sections 25, 34 and 35 exhibits the safeguards ■established about the depositing of the voter’s ballot. All of the provisions of this law, when considered in connection with the purpose, as declared in its title, are indicative of the legislative intent that the independence and freedom of the voter are promoted and are best guarded through the casting of a ballot, ■absolutely indistinguishable in any of its features from all other ballots. Now. it is perfectly plain and it is not disputed that, by the variance in the numbering of the polling place in the official indorsement, these ballots in question were distinguishable from those ballots which were prepared for, given out and cast by the supporters of other political parties; an,d every ballot deposited marked, or could be identified as, a Eepub lican vote. The argument that the official indorsement was correct, because prepared for the election district indicated by its number, and that a misdelivery to a different district does not affect the correctness of the indorsement required by •statute, I consider quite unsound. A right construction of the language of the statute calls for a balicé oearing an official indorsement which designates the polling place at which the ballot is to be used, and where that is not so, both the object -and the provisions of thé statute may be violated and the law

So is the argument unsound, which denies the right to compel the board of county canvassers to correct its statements of the result by estimating it without including that number of illegal ballots, which is indicated by and upon the sample ballot attached. If there is a discrepancy between the body of the paper containing the statement and the writing upon the sample ballot, as to the number of votes cast, then the figures in the body of the statement control, and that is the result of our decision in the Noyes case ( 126 N. Y. 392 ). Bnt here the sample ballot exhibits the kind of ballots which the statement certifies to have been deposited to a certain number. Thus we have a case where ballots were furnished at polling places which were not, as to those intended for Republican votes, indorsed uniformly with other ballots. To count such, in estimating the results of the election, in my judgment, is against the letter and the spirit of the Ballot Reform Law. It was an error, for the correction of which, through the intervention of the Supreme Court, by mandamus proceedings, provision has adequately been made (Laws of 1880, chap. 460). The Ballot Reform Law was modelled after what was known generally as the Australian Ballot Law, and its enactment was a long step forwards in the promotion of the purity of popular elections. The difficulty in this case, if the result of a mis, take, as -we assume it to have been, was enabled to occur by the requirement of our law, that there shall he as many sep arate kinds of ballots as there are different political parties represented. Had' there been bnt one ballot required, this occurrence would not have been possible. It may be, and I assume it to he, a hardship that the result should operate to render null so many votes, and to alter what may have been an honest expression of the popular will; but it would he an evil, in comparison with which the hardship complained of is as nothing, if a law, which the people of this state through their legislature so deliberately framed and have solemnly adopted, should be so construed as to render fraudulent evasion

The system, devised by the legislature to enforce the secrecy of the ballot, seems a total failure, unless we give effect to the provisions enacted to sustain it. Genuine ballot reform, as the people have chosen to have it, in this and many other states, means the purity of the ballot, and that seems best attained by the plan of a uniform or secret ballot. If we destroy any of the safeguards erected and intended to be maintained about the voter, for his protection against improper influences and intimidation, we at once do an act in encouragement of the very evil sought to be prevented. If the law provides for a uniform ballot, to originate from an official source, and a plan to render the vote of him who casts It absolutely indistinguishable, and, therefore, absolutely secret, may be construed one way, in the case of a mistake, as here, then is it always open to such construction; for the proof of a fraudulent intent in the preparation and distribution of ballots to be used at a polling place is, very obviously, difficult, if ever possible. Nor ought the burden of that proof, in my opinion, to be thrown upon the candidate whom it has served to defeat. He has the right, as have the .people generally, to rely upon a strict compliance with the terms of the election law and to an election held according to its requirements. If the law is not to be nullified in an indirect manner, then its material directions

The orders appealed from should be affirmed.

I dissent from the judgment in this case. At the November election, there were cast in nine election districts, embraced within the towns of Camillus, Tully, Elbridge and Clay, in the county of Onondaga, 1,252 official ballots for Rufus T. Peck, the Republican candidate for senator in the 25tli senatorial district. It is conceded that these ballots were cast by qualified electors, entitled to vote in the election districts in which they respectively voted; that the ballots were delivered to the electors by the inspectors of election of the election district in which the ballots were cast, and were voted in the usual way, and regularly deposited in the box by the inspectors without challenge or objection.

By the judgment in this case, the 1,252 votes mentioned are declared to be void, and the board of county canvassers are required to reject them in making their returns. The judgment proceeds on the sole ground that the printed indorsement on the ballots did not state the true number of the election district in which they were voted. The exact imperfection will more clearly appear hy referring to a single case. The town of Camillus is divided into two election districts. In the first election district, 143 ballots were cast for Rufus T. Peck, for senator, with the printed indorsement “ Official Ballot for Second District Poll, Town of Camillus, November 3, 1891,” followed by a fao swnile of the signature of the county clerk of Onondaga county. In the second election district a similar number of ballots were cast for Rufus T.

The facts in regard to the ballots cast in the other towns are the same as those in respect to the ballots in the town of Oamillus.

Counting the 1,252 ballots for Rufus T. Peck, he was elected senator. Rejecting them, John A. Nichols will receive the certificate. The judgment of the court results in this: The candidate who received a minority of the votes of the qualified electors in the 25th senatorial district is declared elected, and the candidate who received a majority of such votes is deprived of his office.

The explanation of the mistake which has produced the present complication is simple. The Ballot Law imposes upon the county clerk of each county the duty, after nominations by political parties, or by the requisite number of citizens, have been made and certified, to prepare and print ballots for each election district in the county, in number twice as many of each kind as there were persons who voted or were registered in the district at the last preceding election. It is also directed that on the back of each ballot shall be printed the words “ Official Ballot,” and also the number of the polling-district for which it was prepared, the date of the election and a fao svmile of the signature of the county clerk.

The ballots for the county of Onondaga were prepared by the county clerk, and printed and indorsed in exact conformity

By mistake or inadvertence of the county clerk of Onondaga county, or of his subordinates, the package of Bepublican ballots, prepared for one election district, were marked on the outside with the number of another district in the same town. For example, in the case of the town of Camillus, the ballots indorsed “ First District Poll ” were marked on the outside of the package, “ Second District Poll,” and those prepared for the second election district were wrongly marked on the outside of the package, “ First District Poll.”

• I have characterized the action of the county clerk, or of his subordinates, as a mistake or inadvertence. The moving papers contain, it is true, some general allegations that this misplacing of the ballots was designed, and done with a fraudulent intent. This is denied in the opposing affidavits, and there is nothing in the circumstances to justify a suspicion that-the ballots were intentionally misplaced.

But it is sufficient to say that by the express written stipulation of the parties, the charge of fraud or collusion in the moving affidavits is waived. If this issue had been insisted

It is said that there are nearly 200 election districts in the county of Onondaga. There were four tickets in nomination, and for 200 election districts 800 separate packages would be required.

The fault committed in the county clerk’s office was not in the preparation or indorsement of the ballots, but in their distribution only.

The judgment of the court that the 1,252 ballots are void and cannot be reckoned in canvassing the vote for senator, is placed upon the clause in section 31 of the Ballot Law, which declares that “No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with section twenty-one of this act.” Section 31 regulates and defines the duties of inspectors of election in canvassing votes, and the question is whether the clause quoted applies to the votes now in controversy. In my judgment the construction placed upon this clause by the majority of the court proceeds upon a plain misconception of its meaning. It was a leading purpose of the Ballot Law to prevent the use by voters at election of unofficial ballots. The whole machinery of the statute has this object in view. The statute prescribes in great detail how nominations for office shall be made and authenticated. It does not seek to control the free action of political parties in nominating candidates for public office. Nor does it prevent any voter from voting for any person he may choose to vote for, whether he has been regularly put in nomination or not.

The statute does require, however, that in all cases except those mentioned in section 21, the voter shall use the official ballot in exercising the right of suffrage. He may vote for

If in canvassing the votes unofficial ballots are found, not coming within the class of unofficial ballots specified in that section, the conclusion is inevitable that they came there by fraud or mistake. It was to meet this situation that the clause in section 31 was inserted: “ No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with section twenty-one of this act.” The meaning is the same as if the section read: “No unofficial ballot shall be counted, except such as are voted in accordance with section twenty-one of this act.” That the 1,252 ballots in question were official ballots cannot be successfully controverted. They were prepared and printed as official ballots, indorsed as official ballots, distributed as official ballots, and voted as official ballots. No one could mistake their identity as official ballots. The most that can be said is, that as they were not the ballots designed to be used in the particular election district in which they were voted, and had on them the number of another election district, they were as to the poll where used, imperfect ballots. But this did not take

The conclusion I have reached as to the construction of section 31, is reinforced by other considerations. By the Ballot Law the state assumes the duty of providing official ballots. The voter has no right to interfere either in their printing or distribution. In distributing the ballots the state through designated officials commits an error and ballots designed for one district are sent to another. By reason of this error it is held that the voter who uses the ballot furnished by the state, is deprived of the right to have his vote counted. If the construction of section 31 adopted by the majority of the court is

But passing this point, it is to be observed that under the Ballot Law the voter is practically compelled to use the official ballot furnished at the polls. The 24th section, after directing that at the opening of the polls the inspectors shall open the packages containing the ballots and place them in charge of the ballot clerks, proceeds: “ The ballot clerks shall thereupon deliver to the voter, and the voter shall receive and take with him into the booth or compartment one of each kind of ballots, which shall have been furnished for use at such polling place.” The 2oth section declares that: “ On receiving his ballots the voter shall forthwith and without leaving the inclosed space, retire alone to one of the voting booths or compartments so provided, and shall prepare his ballots.” He may attach a paster ballot to the official ballot, or write thereon the name of any person for whom he desires to vote. But whatever change he makes, must be indicated on the official ballot.

Upon the question of legislative intent, it is conceivable that it was the intention of the legislature in enacting section 31, to place upon the voter the responsibility of ascertaining whether an official ballot delivered to him corresponds in every particular, in form, size and indorsement, with the description in the statute at the peril, in case of misjudgment, of a forfeiture of his vote. The legislature must be supposed to have known that the great majority of voters are plain men, avIio would not be familiar Avith the details of a complicated statute. They come to the polls without any vote prepared. The laAV obliges them to receive the ballot furnished them by the election officers, and upon that to indicate the changes desired. The misstating on the ballot of the proper number of the election district would not be likely to attract their attention, and in the case in question it Avas known neither to the inspectors nor the voters.

The conditions under which by section 21 the voter is authorized to uáe an unofficial ballot did not exist. This is insisted upon at length in the brief of the counsel for the relator. It emphasizes the helplessness of the voter, and the moral coercion under which he was placed, to use, if he voted at all, the official ballot furnished.

The point upon which the most stress is laid in the prevailing opinion is that the wrong number of the election district indorsed on the ballots afforded inspectors and by-standers a means of ascertaining how the voter voted. That the ballots were official ballots has already been shown. If they were not official ballots, then the consequence would necessarily follow that if all the ballots voted in any election district had been of the same character the whole vote would have to be rejected, irrespective of the question of identification. In the case supposed of ballots, all of which were affected with the same imperfection, there could be no identification of a particular vote. The misnumbering of the election district happened to be on the Republican ballots only. If this fact had been known, then the use by a voter of that ballot would be some indication how he voted. The uncertainty would arise from the fact that the voter might have attached a paster ballot, or written upon the ballot the names of persons other than those printed thereon. It is doubtless true that it was one of the purposes of the election law to secure more perfectly than theretofore the secrecy of the ballot. To attain this end the Ballot Law contains special provisions. By the 29th section inspectors of election are prohibited from depositing in the ballot-box “ any ballot that is torn or has any other distinguishing mark on the outside thereof.” The wrong number of the election district printed on those ballots, it is said, was a dis

Section 31 makes special provision for raising and investigating the question of marked ballots. If during the canvass of the votes, or immediately after its completion, any inspector or watcher declares his belief that any particular ballot has been written upon, or marked “ with intent that the same may be identified,” it is made the duty of the inspectors to write their names on the back thereof and attach it to their certificates with a specific statement of the grounds upon which its validity is questioned. Thereafter and within thirty days after the filing of a certificate declaring the result of the election, the matter may be inquired into by a writ of mandamus, issued out of the Supreme Court, against the board of canvassers or officers, “ by whom the ballots were counted,” and the section then provides for the trial and determination of the question of their validity.

The 1,252 ballots in question were not challenged as marked ballots, were not returned as marked ballots, and they were burned by the inspectors after the completion of the canvass on the night of election. The present proceeding is not taken, and could not have been taken, under the provisions of section 31, relating to marked ballots, and this is admitted by the counsel for the relator. The whole question conies back to the one point, of the meaning of the clause in section 31, which declares that “No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act.” The conclusion of the majority of the court as to the construction of this clause is sought to be strengthened by reference to section 29, which provides that “ No inspector shall deposit in a ballot-box, or permit any other person to

Oases have been cited from the courts of other states, holding that where election laws prescribe that ballots of a certain description shall not be counted, the statute must be followed. In the view I take of the meaning of our statute, these

This decision defeats the will of the majority and subverts, in the particular case, the foundation principle of republican government, and this upon a narrow, technical, harsh and unnecessary construction of the law. In place of protecting the right of suffrage, it destroys it. It takes hold of an unforeseen and accidental incident and builds upon that a forfeiture by inference and construction.

It opens the way for frauds upon the suffrage, wide reaching in their effects. In 1884, the electoral vote of this state was cast by electors who received a plurality of votes less than the number rejected by this decision. Corrupt officials can,

Having a firm conviction that this judgment is wrong, I cannot do otherwise than record my dissent.

(dissenting). .1 dissent from the conclusions arrived at by the majority of my brethren in this case, but do not desire to express my views at any great length. The question, though, is of so much public importance that it seems incumbent upon me to give some of the reasons' which compel my dissent.

The facts are undisputed. Hr. Rufus T. Peck received more votes than any other candidate for senator in the 25th .senatorial district, and a plurality of three hundred and eighty votes over the next highest candidate for that office. By the judgment of this court this plurality is stricken out, and one of eight hundred and seventy is given to the relator. The ballots of twelve hundred and fifty-two electors of that senatorial district, which were deposited on the day of election for Hr. Peck, without the slightest objection in any of the election districts, are to be cast aside in one mass.- The reason alleged is that a mistake was made in the distribution of the Republican official ballots, by which-those bearing the indorsement ■of one election district were sent to another election district in the same town, and vice versa, so that, for instance, the indorsement on the ballots actually voted in the first election district of the town of Camillus bore the number of the second election district in the same town, while those for the second bore that of the first. The indorsement complied in all respects with the law, unless this error made the ballot worthless and rendered it the duty of the inspectors of election to refuse to permit it to be deposited in the box, or, if deposited, to be -counted. The ballots were voted in fact without any objection or challenge in a single instance by any human being, and ■were counted by the inspectors of election without a protest from any source. Ho one then supposed they were illegal or ¡unofficial ballots. The county canvassers are now, by the judg

It is not claimed that any but qualified voters voted at the election in this senatorial district, and it was conducted quietly, honestly and fairly, so far as these papers disclose, without a thought of the danger impending over such election by a slight mistake in the distribution of these ballots in regard to the commission of which not one of the men who voted them, sc> far as appears by the record, was in the least degree responsible. The mere statement of the proposition to reverse the result of an election under such circumstances and for such a cause is calculated to create in most minds a feeling that, if actually consummated, gross injustice would thereby be done and that no fair reading of any Ballot Law would permit its consummation. To utterly disfranchise hundreds of innocent legal voters because the employe or messenger of some public oificermade a mistake like the one in question, seems to me to work a burlesque on the Ballot Act and its construction.

Where any particular construction which is given to an act leads to gross injustice or absurdity, it may generally be said that there is fault in the construction and that such an end was never intended or suspected by the framers of the act. A construction of the kind placed upon the act here under discussion certainly tends to bring the law itself into contempt. This I think is a misfortune, for I believe the purpose of the act to be most commendable, and if it received a reasonable interpretation its operation would be beneficent.

The construction of this act by the majority of the court is as I believe wholly unnecessary, and (I say it with great respect) unreasonable. As to the proper meaning to be given these particular sections of the Ballot Act, I concur substantially in the views expressed by Andrews, J. The general object and purpose of the act may be learned from its title, being to “ Promote the independence of voters at public elec

To these ends official ballots are to be provided by a public officer with whom the names of all parties nominated for office are to be filed, and this officer is to see to the printing of such ballots. Por the purpose of identifying the ballots as official, they are to be printed in a uniform way upon the same kind of paper and on the back of each ballot is to be printed in prescribed type the words “ Official ballot for --,” and after the word' “ for ” shall follow the designation of the polling place for which the ballot is prepared, the date of the election and a fao simile of the signature of the county clerk, and there is to be no caption or indorsement upon the ballot other than as above. These official ballots are to be distributed by the county clerk to the town and city clerks and by them on the day of election to the various election polls in the town and city. If they are not furnished, then under the provisions of the act unofficial ballots may be used. If the official ballots are furnished they alone can be used and no unofficial ballot can be deposited in the box or counted by the inspectors.

It seems to me plain that official ballots were furnished the various election districts in question here, and that they did not cease to be such official ballots because of the mistake described. The argument for the respondent is that these ballots were “ not properly indorsed,” and hence should not be received or counted within section 29. That section does not, in my judgment, embrace such a ease. The ballot was “ properly indorsed ” when printed, for it had on nothing but the words and figures provided for by statute; it had been printed at the public expense by the proper public officer, or under his direction; it had on the back of the ballot a fao simile of the signature of the county clerk, and it had been sent out for distribution according to the provisions of the statute, and had been brought to the polls by or under the direction of the town clerks respectively. Hence, when they were thus delivered, they still bore the characteristics of the official ballot, and were such ballots. The statute means that when official ballots are thus

But if all these safeguards are insufficient, not alone to prevent a mistake, but are even insufficient to prevent a willful violation of the act, when the object is to so mark an otherwise official ballot that it may be known whenever such ballot is voted, yet the act in such case provides for the proper proceeding. Under section 31, an inspector of election or watcher, during the canvass or immediately thereafter, may declare his belief that any ballot has been written upon, or marked in anvy way, with the intent that it may be .identified, and then the inspectors are to write their names on it and it must be attached to the original certificate, and go to the county canvassers, where a means is prbvided for ascertaining the facts judicially. But the ballots are in the meantime counted.

The only possible ground for giving any importance to the

However, the mark on the ballot in this case was important for this purpose or it was important for nothing. It was only important as a marked ballot, by which it might be determined what kind of a ballot an elector voted.

The consequence of voting a marked ballot is provided for under the section (31) above spoken of. And if it were marked pursuant to any scheme of the officials who were concerned in its distribution, such fact could be made to appear upon the judicial investigation. But a mere inadvertent mistake of an officer ought not to work such an extreme penalty as disfranchisement on innocent electors. There is no reason or justification, as it seems to me, to be found in the object or purpose of this act for throwing out ballots voted as were these ballots.

There is another view in which the act may be considered. The directions not to count the ballots or permit them to he deposited in the box are given to the inspectors of election alone. If they violate the provisions of the act they lay themselves open to prosecution criminally. If they do count ballots which they ought not to and so return a result which includes their counting, the board of county canvassers must canvass them, for such board is only a ministerial body and simply foots up the aggregate result of the whole vote and declares the same. The state board is of the same nature.

In this case the court compels the board of county canvassers to throw out votes actually received and counted by the inspectors without challenge or protest, and thus a different result is arrived at than the facts warrant. This the board

I have read this statute with all the care and attention I could bestow upon 'it with a desire to construe it in the light of its declared purposes and with an earnest wish to effect and carry them out, but I am utterly unable to see how this can be done by the construction put upon it by a majority of my brethren. On the contrary, it seems plain to me that those purposes are endangered if not frustrated by a construction which in my judgment is unreasonable and unnecessary and by which thousands of perfectly innocent electors may annually be disfranchised without fault on their part, and the will of the majority be thus set at naught.

For these reasons I am compelled to dissent from the judgment directed by the court in this case.

Buger, Oh. J., Earl, Gray and O’Brien, JJ., concur for affirmance.

Andrews, Finch and Peckham, JJ., dissent.

Orders affirmed.