
    The People ex rel. Oscar Thorn v. Jeremiah Pangburn, Jr.
    (New York Superior Court
    Trial Term,
    October, 1895.)
    In the absence of any provision in the by-laws of a corporation, or in the statute under which it was incorporated, making a ballot containing a printed and a written name of candidates for the same office void, such ballot cannot be rejected, but should be counted for the written name.
    The action is in the nature of a quo warranto, instituted by the attorney-general on behalf of the people of the state, to try the title. to the office of secretary of the Retail Coal Exchange of the city of New York, a domestic corporation doing business in said city. Oscar Thorn, the claimant of the-office, is joined as relator, and Jeremiah Pangburn, Jr., the incumbent of the office, is made defendant on the allegation that since December 21, 1894, he has usurped the office and unlawfully exercised the functions thereof.
    It appears that on the evening of the day mentioned an election was held, pursuant to the by-laws of said corporation, for the selection, among others, of a secretary bf the corporation, to hold office, for one year thereafter. The regular ticket, containing the names of candidates, one for each of the offices to be filled, was furnished to. all members who desired to vote. On this ticket was printed “ Jeremiah Pangburn, Jr.,” for secretary. Forty-two votes were received, and on being counted by the tellers it was found that for the office of secretary nineteen ballots contained the printed name of Pang-burn, while twenty-one had the printed name of Pangburn stricken out and that of Thorn, the relator, written in pencil underneath. This left Pangburn with nineteen and Thorn with twenty-one votes. Upon the two remaining ballots, concerning which the dispute arose, appeared “Jeremiah Pang-burn, Jr.,” in print and unerased ; and underneath, in pencil, “ Oscar Thorn.” These votes, if credited to Thorn, would have given him twenty-three votes against Pangburn’s nineteen, a majority of the entire number of votes cast.
    The tellers decided that, as these two ballots contained the names of two persons for one and the same office, they were void; and under the provision of the by-laws (Art. 14, § 4) that “ a majority vote of. the members present shall be necessary to elect,” there had been no legal election. Whereupon a new ballot was ordered, which resulted in Pangburn’s favor, and he was accordingly declared elected.
    The people and the relator contend that the two. ballots declared void should have been counted in favor of the latter, and that so counted he had a majority of all the votes cast and was duly elected.
    The determination of the issue involved depends upon whether these two ballots should have been counted in the relator’s favor, or were, as the tellers held, void; and whether by the acquiescence of the relator in the new election he was concluded by the result thereof.
    
      Theo. E. Hancock,. Attorney-General, and li. A. B. Bay-ton, for plaintiffs.
    
      Jas. E. Buffy and I. Wertheimer, for defendant.
   MoAdam, J.

As to the legal effect of a ballot containing two names for one office, there is an apparent confusion in the books, which, however, on examination, , is readily cleared up. Paine, in. his work on Elections (§ 544), says: “ Suppose three persons to be voted for,, when only two can be elected. What is the choice of the elector in such a case ? It is manifestly impossible to determine. Insertion in the ballot of a single name more than ought to be on it renders it as uncertain as though twenty were inserted. The result is that such a ballot is void for uncertainty. • It fails to express the choice of the elector, and consequently cannot be counted as a vote. It is true that such a ballot furnishes evidence that there was an elector present at the election who attempted to vote. But that is not sufficient.. The majority required to elect is not of those who vote and attempt to vote; .but it is a majority of the legal voters. .And in order to be counted as a vote the ballot must express intelligibly the choice of the voter respecting the matter to be voted on.”

In harmony with the views of this author there áre cases which liold that where under one office appear more names than persons to be elected for that office, the ballot -cannot be counted for any of them. People v. Loomis, 8 Wend. 396 ; People v. Ames, 19 How. Pr. 551; People v. Cook, 8 N. Y. 67; State v. Ely, 4 Wis. 420; State v. Griffey, 5 Neb. 161; State v. Tierney 23 Wis. 430; People v. Seaman, 5 Den. 409; Election of School Directors, 6 Phila. 437.; 6 Am. & Eng. Ency. of Law, 345. Some of the cases were decided upon the peculiar phraseology of prevailing statutes, and in determining their" value that discriminating feature must always be kept in mind (Newton v. Newell, 26 Minn, 529); in all the names voted appeared upon the printed 'ballot. Here the relator’s name was written under the printed name of Pang-burn, and this circumstance presents another feature which distinguishes this- case from those cited.

It is the settled law of our state that where there is a printed name upon a ballot, and a name written under it, without erasing the printed name, it will be presumed that there was a failure to erase the printed name by inadvertence; and in the absence of a statute requiring the vote to be rejected it will be counted as a vote for the written name. People v. Saxton, 22 N. Y. 309; Wallace v. McKinley, 48 Cong. Ex. H. R., No. 1548; Campbell v. Morey, Id. 1845. This proceeds upon the theory that the intention of the voter should in every instance prevail, and that a person taking the pains to write the name of a candidate, where there is hut one office,' must he taken to have, clearly expressed his preference; and such a ballot indicates a plain intention to substitute the written for the printed name as the voter’s 'choice. This construction seems to he the prevailing one, within the well-established rule that where there is any repugnancy between the written and printed portions of an instrument the written portion is to prevail over, that which is printed. Delonguemare v. Tradesmen's Ins. Co., 2 Hall, 589 ; Weisser v. Maitland, 3 Sandf. 318 ; Harper v. Albany Mutrual Ins. Co., 17 N. Y. 194; Benedict v. Ocean Ins. Co., 31 id. 389 ; Clark v. Woodruff, 83 id. 518; Hutt v. Zimmer, 78 Hun, 23.

In Blockley Election, 2 Pars. Sel. Eq. Cas. 534, á contrary view was held, because the statute of Pennsylvania declared that a ballot containing two names for one office should be void, whether such names were printed or written 'thereon. A somewhat similar ruling was made under- the statute of Minnesota which declares such a ballot to be void (Newton v. Newell, supra), and this upon the theory that an effective intention cannot he inferred from a void act. But in the absence, of a statute declaring such a ballot void the rule laid down iu People v. Saxton, supra, controls. And where there appears to be a doubt whether the person intended to vote for two, persons or to substitute one name for the other, it becomes a question .to he determined by the court from the circumstances of the case and the appearance of the ballot. People v. Love, 63 Barb. 535. The intention of the voter must be ascertained from the ballot; for if the elector should deposit the vote and swear ever so strongly that he intended it to be for a particular candidate, it could not be allowed to him, unless it appeared, upon other competent evidence, that his name was actually written or printed upon it. People v. Pease, 27 N. Y. 84.

The election here was at a meeting of the Coal Exchange, a private corporation, incorporated under the laws of this state, and neither the statute under which it was incorporated nor the by-laws enacted by the corporation itself make the-ballots containing the printed and written'names void; hence-they are valid under the controlling authorities, and the relator1 was duly elected.

The tellers acted conscientiously, and in the belief that ther two ballots were void, and neither candidate had the majority of votes required- by the by-laws* the members by direction of the chairman proceeded to a new- ballot. No objection was made to this course; the relator apparently acquiesced in it by again presenting himself as a candidate, and although defeated on the second ballot, he claims title under the first.. This, might perhaps estop the relator" if it were a -private controversy between him* and the defendant; but the state is a party, and the relator’s acts cannot estop it from having the validity of the election dependent upon the first ballot determined. It might have been as well to allow the corporation to run the - election in its own way, so long as the members were satisfied ; but the state by virtue of its prerogative has interfered, and the question must, therefore, be decided according to legal-principles. If the state succeeds, it is because the defendant was not duly elected, and it must" necessarily follow that the relator is entitled to the office.

The people are, therefore, entitled to judgment of ouster, and the relator to judgment for the possession of the office with its emoluments.

Ordered accordingly.  