
    The People ex rel. Henry Bradley et al., Resp’ts, v. Thomas G. Shaw et al., App’lts.
    
    
      (Court of Appeals,
    
      Filed June 17, 1892.)
    
    1. Election—Oeficlal ballot—Paster ballot.
    The voter is not limited to voting for candidates receiving a nomination by a political party which at the last election polled one per cent, of the entire vote cast. He may vote for any candidate whom he may choose.
    2. Same—Marked ballot.
    Relators, who were nominated for the several town offices at an inde» pendent meeting or caucus, were obliged to have paster ballots printed at their own expense for use at the polls, and which they pasted upon the official ballots endorsed “town.” All of these paster ballots had printed upon them the name of the candidate for the office of excise commissioner, which, under the ballot law, are to be voted for upon a separate ballot, in a separate box. Meld, that this did not make them marked ballots, and that it was the duty of the inspectors to have counted the ballots for the other candidates named thereon in declaring the result of the election, and they could be compelled to do so by a peremptory writ of mandamus.
    
    Appeal from order of the supreme court, general term, third department, affirming order for peremptory mandamus directing defendants to reassemble and allow to relators the votes cast for them on certain paster ballots.
    
      J. W. Houghton, for app’lts; Foley <& Wing, for resp’ts.
    
      
       Affirming 45 St. Rep., 533.
    
   Gray, J.

These appellants composed the board of town canvassers for the town of Minerva, and in proceedings instituted upon the application of these relators a peremptory writ of mandamus issued, requiring them to reassemble and to declare the result of a town meeting, allowing to the several relators the number of votes cast for them as stated in the moving affidavits and called “ paster ballots,” and directing the board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such “ paster ballots.”

The first objection, that the relators having failed to receive a proper nomination by a political party which at the last election before the holding of the convention, or primary meeting, polled at least one per centum of the entire vote cast in that political division of the state for which the nomination is made, could not be voted for, is wholly unsound and without force. The plan contained in §§ 2 and 8 of the ba'lot reform act was a provision for the printing of an official ballot at public expense; a feature well designed to secure the desired secrecy and independence of the ballot. But that it was in no wise intended to prevent the voter to vote for any candidate whom he chose, is evident from the further provisions of the law (§ 25) that “ the voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. ” Indeed, to hold otherwise would be to disfranchise or to disqualify the citizen as a voter or a candidate, and, in my opinion, to affect the law quite unnecessarily with the taint of unconstitutionality in such respects.

The interesting and more important question in the case relates to the effect which the presence upon the paster ballot of the name of the office of excise commissioner, and of the name of the candidate therefor, had upon the ballots cast for the relators. Being upon the ballot officially .endorsed and to be cast for town officers, other than excise commissioners, who, under the ballot law, are to be voted for upon a separate ballot and in a separate box, of course they could not be counted as votes for the candidate for excise commissioner; but it was argued that the effect upon the ballot was to mark, or identify it, and to subject it to the condemnation of the law. The relators, who were nominated for the several town offices at an independent meeting, or caucus, were obliged to have paster ballots printed at their own expense, for use at the polls. All of these paster ballots had printed upon them the name of the candidate for the office of excise commissioner ; and if that was a fact which made the ballot a marked one, within the meaning of the ballot law, then every one of the ballots printed for this independent ticket and for the use of its supporters was vitiated. The effect of this appearance upon the paster ballots, however, was not for consideration in this proceeding otherwise than as to whether it constituted any reason for rejecting them in counting the votes and declaring the result.

The case, upon the affidavits presented, quite warranted the issuance of the writ in question. Aside from the grounds stated in the opposing affidavits for defeating the relators’ application, which concerned the legality of the mode by which the relators were put in nomination, all that was urged against the “ paster ballots ” cast for them was 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, etc.”

That was, in substance, a claim that these paster ballots were illegal and could not be counted. There was no conflict as to the number, or description, of these paster ballots, and each bore the proper official endorsement entitling it to be deposited. The protest, which was filed by the appellants, and which appears in the case, was upon the sole ground that no names for any office should be counted, unless they were such as had received a legal nomination, properly certified to the clerk.

We think that by a proper reading and construction of the ballot law, it was the duty of the inspectors to have counted the ballots in declaring the result of the election and that any objection to them, upon the ground that they were marked ballots within the meaning of the act, could not be determined in this proceeding. The question before the court, upon the application of these relators, was- purely one of law, on a conceded state of facts, and one which it was competent and proper for the court to decide upon the hearing.. It went solely to the right of the relators to have the paster ballots counted and declared by the board of canvassers, in stating the result of the town election. The particular feature objected to in these paster ballots suggested no ground for their rejection under the election law, and there was no other question properly before the court in this proceeding. These ballots should, therefore, have been counted by the board and, because of their rejection, the peremptory writ of mandamus was properly ordered to be issued.

No other questions call for any review by us and the order appealed from should be affirmed, with costs.

All concur, except Finch, J., not voting.  