
    Matter of the Application of Hugo Hirsh for a Mandamus.
    (Supreme Court—Queens Special Term,
    November, 1895.)
    The law casts upon the county clerk the duty oí combining allied, nominations, and thereby making up the official tickets and ballots from the certificates of nominations.
    Objections to the regularity of the official ballot as made up by the county clerk must be taken before election, and cannot be taken after the ballots have been used by the voters in order to affect the count.
    The fact that the column of a local organization has been filled out with the state nominees of a party of similar political faith or principles does not make the ballot a marked "one.
    Application for a mandamus to compel the board of county canvassers to exclude from their canvass and count all votes cast for justice of the Supreme Court by means of the, Gleason column on the official ballot.
    
      Henry A. Montfort, for petitioner.
    
      Ha/rrison S. Moore, Elihu Moot and Benjamin F Tracy, opposed.
   Gaynoe, J.

By section 56 of the Election Law all nominations' for office made by party conventions are known as party nominations. In this respect it puts a mere local iso- . láted party organization upon the same footing, as a state party organization, with its gradation- of local divisions or sections from state down to town. It applies, however, only to such organized parties, state and lopal, as polled at the last-pre'ced-- ' ing election the number of votes required-to give it a status to-'make nominations, viz., ten thousand votes in the case of a. state party, and one per cent, of all the votes cast in the locality-in the' case of a local party. -By section 81 it is provided that-, all nominations shall be printed upon one ballot, in parallel columns, and that the ticket, or list of candidates, of each party shall be put in a separate column. Thus each party,state or locals now has, its- separate column, whereas formerly it had a separate ballot.. The Gleason, or “ Regular-" Democratic Party,” as its legal name is, is' a local party-in Queens, county. It nominated by convention candidates: for the county offices, for senator and assemblymen, and also-, for the city offices of Long Island City, which is within the county. It made no other nominations. By section 86 it was the fluty of the county clerk to prepare the ballots for the election. This he had to do from the certificates, of nómina- . tions filed in his office in the' case of county and -lesser local nominations, and from the certificate to him by the secretary of state of all nominations for offices, to be voted for by the- ■ electors of the whole state, or of any district of the state larger than a county (sections 58, 60}.. When the county clerk came-to deal with the said local nominations of the . said Gleason, party in the making up of the ballot, he was confronted with, the question whether he. should place them alone in that: party’s column, or whether he should fill the column out in respect of all the other offices, with the nominees of another kindred party organization, if there was such. The said Gleason party was in unity of political principles or faith with the Democratic Party of the State. It was not in unity of politif cal organization with it only because of differences a,s to'local men and measures. This -court at both Special and General Term (Matter of Mitchell, 81- Hun, 401) had, prior to the two last preceding general elections, decided in substance that such

1 unity in political faith .was enough to entitle the said local party, in the preparation of the official ballots, to have the blank spaces upon its ballot filled out with the nominees of’ the State Democratic Party. The county clerk this year fob. lowed these decisions, and associated the. Democratic state-' ■ and judiciary nominations with the said Gleason local ticket, thus making a complete ticket for its column. This could not do any harm, while it enabled a large number of voters to vote as they desired without. difficulty. This court is now asked to require, by mandamus, the board of county canvassers-to exclude from their canvass and count all votes cast for candidates for Justices of the Supreme Court by means of the said Gleason column. The decisions of this court above mentioned had been made in the general spirit of the new election law, to make intelligent and discriminate voting easy. The title of the election act of 1890, which, with amendments, makes our present election law, was, in part, “ An act to promote the independence of voters at public elections.” A contrary decision would have construed our improved election law to be, not a method of making independent voting easy, but a scheme to make indiscriminate straight party voting easy, and discriminate voting difficult and perplexing. The election law was changed at the last session of the Legislature by doing away with separate ballots for each ticket of nominations, and putting all tickets of nominations upon one ballot in separate columns, as already stated above; and also- by. requiring each ticket to be headed by an emblem,, in addition; .to - the former requirement of a party name only (sec;. 56).. Since this change the Supreme Court in the first judicial' department has decided that the nominees of a local party must stand alone in that party’s column upon the ballot.. It is said that the new requirement of an emblem makes; such a substantial change that this decision had tó follow.. It may not be easy to see how the mere coupling Of an emblem with the-name at the head of the ticket 'makes; a different case;; nor can the rule of this decision result in lessening the-, number of party columns, as has been stated. But it is. not necessary to make a choice between these conflicting decisions. It is enough for the decision of the case now under consideration that the law casts upon the county clerk the duty of combining allied nominations, and of thereby making up the tickets and the ballots from the certificates of nominations; and that1 he did make them up, , and that the voters used them. The' ■state cannot take untó itself the providing of the only ballots which the- voters may use, and then disfranchise the voters for having used the ballots which it furnished. It has always been, and is yet, a cardinal rule in the law of elections that ■election officers may not by their mistakes, dr even by their misconduct, disfranchise voters; and if there be any exception to this rule it arises out of the insurmountable obstacles ■of a particular case. Paine Elections, § 499; People ex rel. Frost v. Wilson, 62 N. Y. 186.

But our present election statute-provides for the settling of all questions like that now before the. court in respect of ballots in advance of the election, and thereby precludes the raising of such questions after election'. By section 86 the ■county clerk is required to have sample ballots open to inspee-' tion and objection five days, and fae similies of the official ballots four days before election. By section- 88 any voter may show by affidavit to the Supreme Court or a justice "thereof that an error or omission has occurred in the printing of the sample or official ballots;, whereupon such court or justice is required to hear the case, and cause the same to be ■corrected. The statute thus provides for the establishing of the legality of the ballot in these respects before election by titself giving due notice and opportunity to -every one to be heard concerning such errors or mistakes. I think the -legality of the ballot in these respects is thus conclusively established. Matter of Union El. R. Co., 112 N. Y. 61, And in the present instance a voter did'apply to this court to have the Democratic state and . judicial nominations removed from the said Gleason ticket, but the court held that they were lawfully placed there, and denied the application. The result of •following these provisions of the statute must be just as con-elusive upon the public and upon every one as are, for instance, statutory proceedings for the closing of a public highway. 1 R. S. 518, § 81.

I have thought it best to dispose of the case on the merits, though I think the petitioner is not in a position to be heard upon the merits at all. The ballots having been voted, the canvassers had no power to reject them as void. Such power is given to them only in the case of ballots (sec. 104) from which there shall have been erased any device, figure or word, or upon which there shall he written any word or words other than the name of the candidate, as above provided ” (viz., in the column provided for that purpose). The canvassers therefore' having no power to reject the ballots in question, this court has no power to order them to do so. The object of an election count is to ascertain the prwna facie result from the ballots which have to be counted, and a court may interfere only to cause this result to be reached in due' order. All questions lying deeper than this may only.be heard and decided in an action to test title to office.

The contention of the learned counsel for the petitioner that the ballots 'were marked for identification within the meaning of section 114, by reason of the filling out of the Gleason column with the nominees of the Democratic party in the way above stated, I fail to understand. All of the ballots being the same, it cannot he said that they were marked to be identified or distinguished. Moreover, the meaning of the statute is that the marking of ballots for identification must he by the voters themselves. The mistakes of the county clerk may not he attributed to them. But the case of ballots alleged to be marked for identification is carefully provided for by the- statute. The canvassers are obliged to count them, but they have to annex them to their return, and then this court is given jurisdiction to determine whether they were marked by the voters for the purpose of identification, and if so to have them deducted from the totals by the canvassers of election (sec. 118).. The ballots not having been challenged and returned as marked, the court cannot pass upon them in that respect. People ex rel. Bradley v. Shaw, 133 N. Y. 493.

- Motion, denied. ■  