People ex rel. Bush v. McKenzie

These are motions for writs of peremptory mandamus to the above named defendants.

The applications are made upon the affidavit of the relator, who was a candidate for member of assembly at the recent general election; he states that at such election there were in the first election district of the town of Esopus, in Ulster county, fifteen paster ballots pasted upon the official ballots furnished for use at said district at said election; each and every one of which paster ballots was marked either by the person who cast the said ballot or by some other person, for the purpose of having the same identified. That said paster ballots contained the names of the candidates of the republican party for the several offices to be voted for at said election; that upon each of such paster ballots there was pasted a paster ticket upon which was printed the name of William Luby, a candidate for coroner. In one of the above cases he is described in the moving affidavits as the democratic and in the other as the republican candidate for coroner. It is further alleged that some of the paster tickets • containing the name of said William Luby were pasted upon the paster ballots upside down, and the corner of each was cut off at a sharp angle. The same state of facts is alleged as to district number two, except the posters were eleven in number and each one is alleged to have been pasted upside down upon the paster ballots.

The relator further states, upon information and belief, that during the canvass, or immediately after its completion, some of the election officers or authorized watchers declared his or their belief that such paster ballots had been marked for the purpose of identification. He also alleges that the inspectors of election or some of them knew and believed that such ballots had been marked for identification; but that notwithstanding such knowledge and declarations the said inspectors did not write on the back of such ballots the words “ objected to because marked for identification ” or any mark in substance to that effect, and did not in any way designate said ballots or sign their or any of their names thereto ; that they did not attach any of said ballots to their statement of canvass, or to the certified copies thereof, but that they kept said ballots and now have them in their possession.

Upon that statement of facts he asks that the inspectors of election be directed to “ reconvene and attach to their statement of canvass, or to the certified copies thereof, the said marked ballots, now. in the possession of them or any one of them, with the statement as required by law, that the counting of said ballots was ob

The law provides as follows : “ When an inspector of election or other election officer or duly authorized watcher shall, during a canvass of the votes, or immediately after the cojnpletion thereof, declare his belief that any particular ballot, paster or paster ballot affixed thereto has been written upon or marked in anyvway for the purpose of identification, the inspectors or canvassers shall write on the back of such ballot the words objected to because marked for identification,’ or words in substance to that effect, and sign their names thereto, and attach each such ballot to their written statement of the result of the canvass.” Section 114, chap. 680, Laws of 1892.

The first thing to be done then to authorize the inspectors to attach the ballots to the statement of result is that some election officer or watcher should declare his belief that the ballot has been marked for identification; unless that is done they are neither authorized or required to attach such ballots to the statement.

It was held in People v. Shaw et al., 133 N. Y., 493 ; 45 St. Rep., 866 , that where the objection was not taken before the board of town canvassers that the ballots were marked for identification, the court could not consider that objection afterwards. That was a case where upon a paster ballot for town officers there was also printed the name of the office of excise commissioner and of the candidate therefor. The objection was made that they were defective “ in that they contained the name of an office and a candidate therefor that was not upon the official ballots, and could not be properly on the same ticket with the other town officers.” Subsequently it was claimed that they were marked ballots, but the court held that that question was not before it.

The relator says he is informed and believes that such objection, or rather expression of belief, was made ; and his allegation upon information and belief is all that appears before me to show that such necessary objection was made.

On the part of the defendants there is presented as to district number one the affidavits of one of the inspectors, two watchers, a poll clerk and a ballot clerk, and as to district number two, the affidavits of one inspector, two poll clerks, one ballot clerk and a watcher, all swearing positively that they were present during the canvass of the votes polled in their respective districts, and tha

Under such circumstances, where there is on the one side but a single affidavit, and that upon information and belief, and opposed to it that of so many persons who were in a position to have personal knowledge, and who swear positively to the contrary, I am compelled to hold that as a matter of fact no objections were made at the time of the canvass of the votes, or immediately thereafter, that such ballots were marked for identification. But counsel for the relator says that the object of the statute was to have the ballots preserved for the court to act upon, and that as the ballots have been in fact preserved, its object has been accomplished, although in an irregular manner; that the law should be liberally construed. The law should be liberally construed to effect its purposes; among other things, to promote honest elections and an honest declaration of the result. To sanction a practice such as is contended for here would, it seems to me, open the door to fraud and sharp practice, instead of promoting an honest declaration of the result.

The ballots, it appears, have been preserved. They have been preserved in violation of law. Having been voted, and no objection having been made to them as marked for identification, they should have been destroyed. Section 115, chap. 680, Laws of 1892.

. I n providing for the preservation of ballots challenged as marked for identification, the law has provided certain safeguards to identify the ballots and prevent imposition and fraud. In addition to having written upon them'the words heretofore mentioned, it also requires that each inspector shall sign his name thereto; the. purpose of this is obvious. None of these safeguards appear in this case.

The ballots were preserved, but how. They were, as appears from the affidavits, left in public places, apparently in the buildings where the elections were held in the respective districts; the inspectors did not keep them in their personal possession.' The ■danger of such action is obvious. Strangers could obtain possession of them, tamper with them, mutilate or mark them. Ballots not objected to at the time of being canvassed ; preserved in violation of law; out of the possession of the officers; exposed to the •dangers I have suggested, I do not think should now be attached to the statement of the canvass. A construction of the law that would permit it would be lax, not liberal. It would invite sharp practice. I do not mean to intimate that there has been any in this case, but if the procedure contended for is sanctioned now, it invites sharp practice and tampering with the ballots hereafter. In fact the only inspector sworn from district number two swears that no such ballots as above described were voted in his district.

It appears that since the proceedings were commenced, the chairman of the board of inspectors in each of said districts, by

The proceeding was wrong. There is no authority in law for it; a single inspector cannot act for the whole board, and under the facts as they now appear the board itself would have no right to do what a single member of it has assumed to do. The alleged marked ballots so attached to the statements of result since they were originally filed must be removed from such statements before being canvassed by the board of canvassers.

The several motions must be denied, with ten dollars costs in each proceeding. Let the orders be entered accordingly.