Kathan v. Board of Canvassers of Hamilton County

In the appeal from the order of Justice Houghton bringing in the appellant as a party to this proceeding, it is first objected that the notice of appeal does not sufficiently identify the order. While the date of the order is incorrectly stated in the notice of appeal, the notice of appeal specifies the order appealed from as the order bringing in the appellant as a party. This description sufficiently identifies the order. The order was made, however, upon the objection of the appellant that he was “not, and should be,” a party to the proceeding, and in the subsequent proceedings no objection was made by him that he was not properly there. Of an order made under such circumstances we think the appellant has no cause of complaint, and that his appeal should be dismissed.

The appellant objects to the granting of the writ of mandamus, upon the ground that the board had completed its work and adjourned. While this objection might have been good under the old law, specific provision has been made for such an emergency by section 133 of the election law (chapter 909, Laws 1896). In that sec

Were these writs, then, justified upon the merits? By section 135 of the election law the board of ■ canvassers were required, upon the completion of the canvass, to make a statement- “as to all the votes cast for each county office.” Section 136 provides:

“Upon the completion of the statements required by section 135 of this act, the board of canvassers of each county shall determine * 9 * each person elected by the greatest number of votes, to each county office of such •county to be filled at such election. 9 * *”

These sections have been the subject of judicial construction. In Kortz v. Board, 12 Abb. N. C. 85 , it was held that:

“A board of county canvassers has no power to determine that votes cast for and returned to one name (e. g., Andrew O. Getty) were intended to and should be counted and allowed to a person bearing another name (Andrew H. Getty). It has no power to take proof as to such facts, nor to make such determination in its absence. Upon an application for a mandamus under the Laws of 1880, c. 460, authorizing the writ to correct errors in the determination of the board of county canvassers, the court has no greater power than the board itself, and must direct a canvass of the vote as cast, even though it appear by affidavits that the votes were all intended for one person.”

The act referred to has been substantially re-enacted in the election laws. In People v. Ferguson, 8 Cow. 102 , in an action of quo warranto, “on an issue to try whether one was elected county clerk, whose name at length was Henry F. Yates, held, that votes for H. F. Yates were allowable, if, under all the circumstances, the jury should believe that they were intended by the voters for Henry F. Yates.” In that case the opinion quotes the statute, which reads, “which ballot shall be a paper ticket containing the name of a person for clerk of said county.” At page 106 the opinion reads:

‘.‘A name I understand to be a discriminative appellation or designation of an individual. This is so understood universally, and the state canvassers, in the rules adopted by them, to which the learned judge at the trial referred, so understand it. They admit the letters ‘Geo.’ to represent George. Why? Because by common consent they are admitted to represent that'word. So they receive ‘Hen.’ for Henry, not because the man’s name is Hen., but because Hen. is universally admitted to represent Henry. The state canvassers, then, do not confine themselves to names written or printed at full length, but they take abbreviations. Why do they receive abbreviations, when the act says the ballot shall contain the name? The answer must be because the abbreviation is evidence of the intent of the voter. The intent •of the voter is to be ascertained by the canvassers, not by examining witnesses or testimony of any description, except that which is inherent in the ballot itself. From this the canvassers adjudge that the abbreviation represents the word, which word represents the name of the person voted for.”

In People v. Cook, 8 N. Y. 67 , 59 Am. Dec. 451 , it was held that the board of state canvassers act in the main ministerially in making their certificate; “they cannot be charged with error in refusing to add to the votes for Benja-min Welch, Jr., those which were given

“The office of a board of state canvassers is purely ministerial. No judicial powers are vested in them. They are simply authorized to compute the votes cast throughout the state, and determine, upon statements made up from the returns of the boards of county canvassers, what persons have received the greatest number of votes, and upon the statements so made they must declare those persons to be duly elected. No other evidence may be received or used,- and no declaration may be made by such a board, except as based upon a determination arrived at by the statements made up by it in an arithmetical manner from the various official returns before them.”

The opinion, in part, reads:

“The plain reading of the words of the law must be followed, and that inevitably forbids us to entertain an opinion that any judicial powers are vested in the board of canvassers. The members convene, under the statute, to determine, upon the statements, which they must make from the statements returned by the boards of county canvassers, what persons have been by the greatest number of votes elected to office. They are not, in any general sense, to determine. They must determine upon such statement as they have made up in an arithmetical manner from the various official returns before them. It is upon such statements, so made, that they must declare what persons have been duly elected. That is the evidence, and all of it, which the statute permits in connection with the election, and a declaration by the board of canvassers of its results. No declaration can be made, except as based upon a determination reached upon that particular evidence.” And further: “To imply the possession of a power to determine otherwise than upon the evidence, which the statute provides for; to invest this board, so manifestly created for the fulfillment of a mere ministerial function, with any judicial powers,—would be counter to the plain terms of the statute.”

The cases last cited define the nature of the determination which is made by the state canvassers. In the statute, however, the same power of determination seems to be given both to the county and to the state canvassers; and that power has been held as ministerial, only, and not judicial, and a power to determine only from the evidence apparent from the ballot itself.

Within the rules stated by these authorities, we find no justification for the action of the county canvassers. It can hardly be claimed that “Nat. Locke” is an abbreviation for James N. Locke, or that “James N. Locke” is an abbreviation for Nat. Locke. There is nothing upon the ballots, and no evidence before the board, which can reach the dignity of any proof that those ballots were cast for the same person. There had been no nomination of any one by the name of Locke. These canvassers had no knowledge, as far as the records show, that there was such a man in existence as James Nathaniel Locke. When, therefore, the board of canvassers as

It is true that by the affidavits it appears that there was only one man by the name of Locke who could have been intended, and that he was known by these different appellations; but neither the board of canvassers, nor the court upon this application, has any right to receive that evidence. The title, of office cannot be tried in this proceeding. The power and duty of the court is to compel the .board of canvassers to make the report directed by statute, and the últimate rights .of the parties can only be determined by an action in which the title to the office can be fully tried. The orders directing the two writs of mandamus were therefore properly made, and should be affirmed.

Appeal from order directing appellant to be made a party to this proceeding dismissed, with $10 costs. Orders directing peremptory writs of mandamus affirmed, with $10 costs and disbursements upon one appeal. All concur.