
    The People ex rel. Joseph Obert, Relator, v. Olives Bourke et al., Defendants.
    (Supreme Court, Albany Special Term,
    February, 1900.)
    Election Law — Jurisdiction as to ballots objected to as marked for identification — Legal and void ballots.
    Where ballots, found in sealed packages of ballots objected to because marked for identification, are returned by the election inspectors as objected to for that reason, but are marked by them as “ counted, objected to as void ”, the court has jurisdiction under the Election Law (Laws 1896, ch. 909, § 114) to consider their validity in general.
    An imperfect circle, resembling the letter O, is not a legal crossmark and renders the ballot void as containing a mark other than the. voting mark, under rule 9 of section 110 of the Election Law, as amended by Laws 1898, ch. 335, § 7.
    A ballot is void under said rule 9, where the name of a candidate, already printed on it, is also written thereon in pencil.
    A ballot is not invalidated by the fact that it has, in the party circle, several marks which cross each other at various angles.
    Where the Social-Labor party has made no nomination for a particular office and the Republican party has nominated, a ballot, containing crossmarks in the circles at the head of both tickets, must be counted for the Republican candidates.
    A ballot having a crossmark in the circle at the head of the Democratic ticket and a similar mark in the voting space for the Socialist-Labor assessor, must be counted for the Democratic candidates, including the overseer of the poor.
    A ballot is not invalidated by the fact that it has written on it, in the blank column for town clerk, the name “ John Reiley” although the printed name of the Democratic candidate for that office is “ John Reilly ”, as the court will not presume that these persons are identical.
    A ballot must be rejected where a crossmark thereon has been erased by a dirty rubber or a wet finger.
    Purple lead cannot be used to make a crossmark.
    A ballot must be rejected where it has a crossmark in the circle of one party, and a single short line in that of another party, 'as the latter is a mark other than the voting mark.
    
      Pboceediitg to investigate the ballots returned as protested and void for the office of overseer of the poor in the town of Catskill, at the last general election.
    Osborn & Bloodgood, for relator.
    John Sanderson (Lewis E. Carr, of counsel), for defendants.
   Chester, J.

This is a proceeding to investigate the ballots returned as protested and void for the office of overseer of the poor in the town of OatsMll at the last general election. Harrison O. Head, the Republican candidate, was declared elected by a plurality of three over the relator, Joseph Obert, the Democratic candidate.

Counsel have agreed as to all the ballots except four returned as protested and twelve as void.

The defendants question the jurisdiction of the court to make any determination concerning these protested ballots because an inspection of them shows that they are each marked “ counted, objected to as void”, instead of “objected to because marked for identification ”, as required by section 110, subdivision 3, of Election Law. (Laws of 1896, chap. 909.)

The petition and the alternative writ of mandamus issued herein each show that these four ballots were returned by the inspectors and so certified in their statement of the canvass as protested because marked for identification. The return of the defendants to the alternative writ also recites that these ballots were found in the sealed packages containing ballots that were objected to because marked for identification. The ballots are annexed to and form part of the return and are now before the court. The law with reference to protested ballots appears to have been fully complied with except that the four ballots have not been properly marked as is above indicated.

Jurisdiction is given to the court by section 114 of the Election Law to pass upon the validity of protested ballots where the “ original statement of the result of the canvass in an election district shall show that any of the ballots counted at an election therein were objected to as marked for identification”—which is the case here.

Hore than this the parties here have entered into a stipulation in writing that the court shall determine “ whether the ballots returned as aforesaid, and objected to because marked for the purpose of identification, or any of them, were so marked, and whether any of such ballots are otherwise invalid ”.

While the stipulation ought not to be construed to give power to the court which it does not possess under the statute, yet where the court has jurisdiction, as the section last above cited shows, the stipulation may properly be invoked to preclude the defendants from now raising the question that the inspectors have not indorsed the ballots as required by law.

The duty, therefore, it seems to me, is fairly upon the court to consider these protested ballots as well as those returned as void.

First. With reference to the protested ballots:

Exhibit 1 has an imperfect circle resembling the letter O made with a black lead pencil within the circle at the head of the Republican column, and it contains no other mark. The imperfect circle is in no view a crossmark. No part of it crosses any other part. Similar marks were held not to be valid voting marks in the Feeny case, 156 N. Y. 36, as appears by numbers 23 and 175 on the chart used upon and describing the ballots in that case, a copy of which has been submitted to me by counsel. Under that authority and under the express condemnation of rule 9, subdivision 2, section 110, Election Law (as amended by Laws of 1898, chap. 335), the ballot is void and should not have been counted.

Exhibits 2, 3 and 4, each have one or more names of candidates erased with a pencil and are clearly void for this reason under rule 9 above mentioned.

All four of these ballots were returned as protested because marked for identification. Notwithstanding they were so returned, being properly before the court, it has jurisdiction to de-\ clare them void in this proceeding. People ex rel. White v. Alderman, 157 N. Y. 432.

Exhibits 1, 2 and 3 were counted for Mead. Exhibit 4 was not counted for either Obert or Mead. Three votes should, therefore, be deducted from Mead on account of the protested ballots.

Second. With reference to the ballots returned as void:

Exhibits 5, 43 and 44 each have several marks crossing each other at various angles, the two former in the circle at the head of the Democratic ticket and the latter in the circle at the head of the Republican ticket. Under the determination in the Eeeny case, ante, with reference to ballots similarly marked, these ballots are valid. Exhibits 5 and 43 should have been counted for Obert, the relator, and exhibit 44 for Head.

Exhibit 40 has a crossmark in the circle at the head of the Republican ticket and also in the circle at the head of the Socialist-Labor ticket. On the latter ticket there was no nomination for overseer of the poor. The ballot should have been counted for Mead under rule 6, subdivision 2 of section 110.

Exhibit 53 has a crossmark in the circle at the head of the Democratic ticket and also a crossmark in the voting space at the left of the candidate for assessor on the Socialist ticket. I can conceive no reason for its being returned as void. It is a valid ballot for Obert, the relator, and should have been counted for him.

Exhibit 30 has a crossmark within the Republican circle and has the- name John Reiley ” written in the blank column for town clerk. The name of John Reilly ” is printed on the Democratic ticket.as candidate for the same office. Exhibit 33 has no voting mark anywhere upon it but has the name of “ Joseph Obort ” or Joseph Obert” (it may be either as the name was apparently written with a trembling hand) written in the blank column for overseer of the poor, while the name of “ Joseph Obert ” is printed on the Democratic ticket as a candidate for that office. Both tickets were rejected as void because these names were wrongly written in the blank columns. It is probable that one,of the voters of these tickets intended to vote for John Reilly and the other for Joseph Obert, whose names were printed on the ticket, and by mistake wrote the names they did in the blank columns. But has the court the right to determine this question upon that presumption? The statute condemns as void any ballots “ upon which anything is written other than the name or names of persons not printed upon the ballot”. Rule 9, § 110. The court should not by the indulgence of any presumption not plainly required by law extend the condemnation of this statute beyond its express terms and especially not in view of the fact that a liberal instead of .a narrow view has always been taken by the courts in upholding the validity of ballots. As to the name written on exhibit 30, it is a well-known fact that there are many persons of the name of “ Reiley ” as well as of the name of Reilly.” They are not the same name, and I fhimk the court is not bound as a matter of law to presume that they are, and thus extend the condemnation of the statute beyond its express terms. Applying the rule of liberal interpretation the ballot should be held to be valid and counted for Mead. As to Exhibit 33, if the name written on it is the same as that printed, as to which there is some doubt, it must be rejected as void. If, on the other hand, it is not the same name, there is no vote for the relator for there is no crossmark either in the circle over his ticket or in the voting space at the left of his name, so this ballot cannot affect the result one way or the other.

Exhibits 19 and 32 each has an erasure of a crossmark upon it evidently made by a dirty rubber or by wetting and rubbing the mark with the finger. Each was, therefore, properly rejected as void under rule 9.

Exhibit 18 has a crossmark in the circle at the head of thé Republican ticket, but it also has three circular marks or erasures made by a pencil in the voting space at the left of three names on the Republican ticket on the same lines where crossmarks appear in the voting spaces at the left of names on the Democratic ticket. The ticket was properly rejected as void under rule 9.

Exhibit 22 has a crossmark in the circle at the head of the Republican ticket and a cross mark in the voting space at the left of the names of the candidates for collector and for justice of the peace, and also a mark resembling the letter O in the voting space at the left of the name of the candidate for justice of the peace on the Republican ticket on the same line. It was rejected because of the latter mark. This was not a valid voting mark under the law. I think it was properly rejected under rule 9. More than this all the marks on the ticket are made with a pencil having purple lead instead of with one having black lead, as required by law.

Exhibit 36 has a crossmark in the circle at the head of the Democratic ticket and a single short line in the circle at the head of the Socialist-Labor ticket. The latter is a mark other than a voting mark and renders the ballot void under rule 9. Ballots similarly marked (Nos. 52 and 148), as appears by the chart above referred to in the Eeeny case, were held to be invalid.

It results from this examination that ballots 1, 2 and 3 should be deducted and ballots 30, 40 and 44 added to Mead’s vote, and ballots 5, 43 and 53 added to Obert’s, making a net gain of three votes to Obert.

An order may bo prepared accordingly.

Ordered accordingly.  