
    The People, ex rel. Thomas Crimmins and Fred’k Schaefer, vs. Thomas McManus and Daniel Gallagher.
    Where one, who is an inspector of elections for common schools, in one of the ward districts in the city of New York, is a candidate for the office of trustee of common schools in that ward, his office as an inspector becomes vacant, and it is irregular for him to act as such.
    But if there are two lawful inspectors, they are competent to act, without him, and the fact that his office was vacant will not render the proceedings of the other two inspectors, or the ballots of the voters, invalid.
    Where, at an election for trustees of common schools, in the city of New York, ballots were headed or designated for " trustees of public schools,” instead of common schools, as the office is called in the statute; it was held that the intention of the voters was fully manifested; there being no trustees to be voted for at that election, except trustees of common schools.
    
      Held also, that the intention of the voters was not here a question of fact, for the jury, but of law, for the court; and that, as matter of law, the candidates receiving ballots thus headed were entitled to have them counted.
    The statute requiring the ballots to be indorsed in a particular manner is directory, only, and not imperative; and there is no nullifying clause, in case the direction of the statute in this respect be omitted,
    
      Where there is no evidence to show that relators, claiming to have been elected to an office, were ever notified of their election, the objection that they have not taken the oath of office is not tenable.
    AT the charter election in the city of New York on the 4th day of December, 1860, the relators and the defendants were severally candidates for the office of trustee of common schools in the 19th ward, and were voted for by the electors in that ward. Two trustees were to be elected for the full term; the only other candidates for the same office were Henry J. Armstrong and Herman Goebel. In the third election district, the relators Thomas Crimmins received 41 votes and Frederick Schaefer 43 votes, by a printed ballot, which designated them for trustees of public schools. In the fourth district of this ward the same designation was employed upon ten ballots, which gave the relators each ten votes. Five other ballots were cast in the same district with the like designation, but without the superscription “No. ten ” on the outside, to indicate the ballot box to which they belonged. These ballots gave the relators five votes each. All of the ballots thus indorsed “ public ” instead of “ common” schools were, on motion, ordered to be counted as “ scattering votes ” by the city canvassers, on the 15th day of December, 1860. By the rejection of these ballots, Thomas Crimmins lost 56 votes and Frederick Schaefer 58 votes. Had these votes been allowed, Crimmins would have been entitled to a certificate of his election as trustee of common schools for the 19th ward, for, upon the count, as it would then stand, as made by the city canvassers, Thomas Crimr mins would have been allowed 895 votes, Thomas McManus 893 votes, Frederick Schaefer 888 votes, and Daniel Gallagher 840 votes,
    It appears by the proof that Daniel Gallagher, one of the defendants, officiated as an inspector of election in the 2d district of the 19th ward at the election in question, and for this reason it was claimed the election, as to the 2d district, was a nullity, because he ceased to be an inspector when he became a candidate for trustee. In this district, McManus received 267 votes, Gallagher 217 votes, Crimmins 198 votes, and Schaefer 195 votes, as admitted in the answer. If the votes of the 2d district are disallowed, then without counting the rejected votes in the 3d and 4th districts, the result will show that Crimmins received 641 votes, Schaefer 635 votes, McManus 626 votes, and Gallagher 623 votes, thus electing both of the relators.
    The defendants received the certificate of election allowed to the successful candidates, after having been declared elected by the city canvassers, and have taken the oath of office prescribed by law. This action was brought to test the right of the defendants to hold such offices and to oust them therefrom, and to establish the right of the relators thereto. Upon the trial of the action the plaintiffs recovered a verdict, and the exceptions taken by the defendants to the rulings and decisions of the court were, by an order made, to be heard in the first instance at the general term of this court.
    
      D. B. Taylor, for the relators.
    I. The rejected ballots contained the proper outside indorsement, “ school officers,” but the city canvassers disallowed them, because the inside designation of the office for which the relators were named as candidates, was “ for trustees of public schools ” instead of “ for trustees of common schools.” The relators were prominent candidates in the 19th ward for the office of trustee of common schools. There were but six candidates voted for : all of the other ballots contained the proper heading. The ticket in question was made up, as testified to by Levinger, to improve upon the other three tickets. McSpeddon called it the German ticket. There was no misspelling of the names of the relators, which required extrinsic evidence of the elector’s intention. There cannot be the least doubt but that the electors who voted this ticket intended to vote for the relators for trustees of common schools. The question therefore is, whether the substitution of the word “ public ” for the word “ common/’ in the designation of the office of school trustee, vitiated the ballot, and deprived the elector of his vote. It is submitted that the ground on which these votes were rejected is untenable. The policy of the law is to favor the clearly expressed will of the elector, and not to discard his vote for a mere, technical departure from the statutory rules relating to the form of his ballot. The word public, as applied to schools, is synonymous with the word common—■ common schools are public schools—and in this connection the term “ public schools ’’ is found frequently in statutes relating to common schools : “ Public school moneys,” (2 R. S. 5th ed. 92.) “ Public instruction,” (Id. 149 et seq.) “ Public school society of the city of New York,” (Id. 157, 158, 159.) “ Public schools,” (Id. 180, sec. 354.) The additional objection, that five of these ballots were not indorsed “school officers number ten,” is frivolous. The object of this statute is to facilitate the distribution of ballots among the various boxes, and is purely directory in its nature. The ballots were put in the proper box by the inspectors. Besides, the city canvassers did not reject them on such ground.
    II. By the statute which regulates elections, three inspectors are required to form a board of inspectors. (Laws of 1860, page 405.) The inspectors are to meet at the time and place when and where an election shall have been appointed to be held, and shall proceed to organize themselves as a board, for the purpose of presiding at and conducting such election ; one of the inspectors is to be appointed chairman of the board, who is to administer to the other inspectors the oath of office, and afterwards to take his oath, to be administered by one of the other inspectors. (1 R. S. 5th ed. page 436, §§ 1, 2.) Whenever any inspector of election shall be a candidate for any office whatever, except for inspector or canvasser of election, at any.election, his office as inspector shall immediately become vacant, unless he shall have publicly refused, within three days before the day of election, to be a candidate. (Laws of 1857, ch. 294, § 3.) The defendant Daniel Gallagher having become a candidate for the office of school trustee, he ceased to be inspector by virtue of the statute. Hence it is submitted, that in the 2d district the election was a nullity, because no board of inspectors was ever formed to conduct the election thereat. This objection goes to the jurisdiction of the persons claiming to be inspectors, who assumed to act in this district, and does not fall within that class of objections which relate simply to the regularity of the proceedings of the board of inspectors. (People v. Cook, 14 Barb. 259. S. C., 4 Sold. 67.) If then, by reason of this difficulty, there was no board of inspectors organized to conduct the election in the second district, then the entire vote of that district should be disregarded, and this would elect both relators.
    III. The objection taken that the relators did not take the oath of office prescribed by law, within fifteen days after the commencement of the term for which they were elected, is not tenable. There is no proof in the case that the relators did not take such oaths. Besides, the statute which requires it is merely directory. (2 R. S. 5th ed. 141.) “ In general, where a statute requires an official act to be done by a given day for a public purpose, it shall be construed as merely directory in regard to time.” (Ex parte Heath & Roome, 3 Hill, 42. The People v. Cook, 14 Barb. 259. Howland v. Luce, 16 John. 135.) Conceding that this objection was properly before the court at the trial, and can be urged upon appeal, then it is submitted that the ■ statute in question only applies to the candidate who has received a certificate of his election. The oath is to be taken and subscribed “ before the clerk of the board of education.” This construction of the statute is borne out by section 25 of the article entitled “ Of the oaths of office and official bond.” (1 R. S. 5th ed. 411.) But this point is clearly settled by sec. 437 of the code, which allows the relator to take the official oath after judgment in his favor. (People v. Ryder, 16 Barb. 370, 375.)
    
      
      A. R. Lawrence, jun., for the defendants.
   By the Court, Leonard, J.

1. The defendant Gallagher being a candidate for the office of trustee of common schools, in the 19th ward of the city of New Tort, at the December city election, 1860, his office as an inspector of elections for the second district in that ward became vacant. Such is the direction of the act of 1857. (Sess. Laws, ch. 294, vol. 1.) There is nothing in the act of 1860 (Sess. Laws, ch. 246,) inconsistent with that provision in the act of 1857, and it is still in force. Two inspectors of election may act, however. (1. R. S. 422, § 13, 5th ed.)

It was irregular for Gallagher to act as an inspector at that election. There were, nevertheless, two lawful inspectors, and by the statutory provision referred to, they were competent to act without Mr. Gallagher.

It might be considered that public policy requires the votes cast for Mr. Gallagher at the election district where he acted as an inspector should not be counted in his favor, but it is not necessary to decide that question, as will be subsequently seen. So far as the question affects the defendant McManus, the public policy which prohibits voters from being disfranchised, must prevail, in the absence of fraud or the violation of express statutes affecting the result, or rendering the votes or the election nugatory. True, Gallagher was not an inspector, either de facto or de jure. His office was vacant during the whole day of the election. That fact did not render the proceedings of the other two inspectors, or the ballots of the voters, invalid. It was held in The People v. Cook, (4 Seld. 69,) that the election was valid although four inspectors acted, part of the time, one of whom was, necessarily, wholly unauthorized to act.

There was no fraud alleged or proved in respect to proceedings at the said election district; nothing to show that the result of the election was in any respect affected by the conduct of the inspectors.

In my opinion the returns from the second district were properly received; certainly so far as McManus is concerned.

2. If the votes in the third and fourth election districts of the said ward, which were headed or designated for “ trustees of public schools,” instead of common schools, as the office is called in the statute, had been allowed for the relators, one of them, Schaefer, would not have a majority over the defendant McManus. There were two candidates, only, to be elected. Those two candidates having the largest number of legal votes were the persons elected

The verdict is in favor of both the relators, and against both the defendants. It cannot be upheld, even if the views of the counsel for the relators are correct, in respect to the votes in the third and fourth districts, above referred to. The addition of these votes to those allowed would elect the relator Crimmins, but not Schaefer. The defendant McManus is entitled to his office, and the verdict, as against him, is erroneous, without reference to the technical question whether one action can be maintained in behalf of two claimants, each demanding separate and distinct offices. This may be, however, a question of pleading, and thus, if irregular, can perhaps be amended. It was erroneous to direct a verdict for both plaintiffs against both defendants.

Assuming that a trial may be had hereafter, involving the questions arising on the votes of the third and fourth election districts, it is important that the views of the general term thereon should be had.

We consider that the intention of the voters was distinctly manifested by the ballots which were cast for trustees of public schools. There were no trustees to be voted for at that election, except trustees of common schools. The voter cast his ballot for trustees of public schools. There was no officer, having exactly that name, then to be voted for, but there were trustees of schools distinctly indicated on the ballot, and no other officer called a trustee was then to be elected.

[New York General Term,

September 16, 1861.

We think, as matter of law, the relators were entitled to those votes; and that the intention of the voter was not here a question of fact for the jury, hut of law for the court. (The People v. Cook, 4 Seld. 73-75, &c.)

The statute requiring the ballots to be indorsed in a particular manner is directory only, and not imperative. There is no nullifying clause in case the direction of the statute in this respect he omitted. (The People v. Cook, 14 Barb. 290-293.)

There being no evidence to show that the relators were ever notified of their election to office, the judge at the trial correctly held that the objection that they had not taken the oath of office was not tenable.

There must be a new trial, with costs to abide the event.

Clerke, Leonard and Barnard, Justices.]  