
    The People ex rel Henry Bradley et al., Resp’ts, v. Thomas G. Shaw et al., Composing the Board of Canvassers of the Town of Minerva, App’lts.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed May 19, 1892.)
    
    1. Elections—Canvass—Eligibility oe candidate.
    Inspectors and canvassers have no business to decide whether a person voted for is eligible or not; it is their duty to count the votes cast for any and every person whose name appears upon a ballot printed and endorsed as the law directs. The law does not restrict the voter to the candidates placed in nomination by political parties or by petitions of citizens, and it is not necessary that a person’s name should appear upon the official ballot to enable the voters to vote for him.
    
      2. Same—Marked Ballots.
    The town clerk having refused to furnish ballots for the ticket headed by relator Bradley, paster ballots were prepared which, besides the names, of the candidates for the other town offices, contained the name of the candidate for excise commissioner, and this was pasted on the official town ballot. All the ballots cast for relators’ ticket, over 100, were voted by means of such paster ballot, and all had the name of the excise commissioner thereon. Held, that although the votes thus cast for excise commissioner could not be counted because not upon a ticket legally endorsed asan excise ticket, the mere fact that the ticket contained his name-did not make the ballot a marked one in such sense as to require its rejection, as to the other candidates, in the absence of proof that it was so marked for the purpose of identification. (Mayham, P. J., dissents.)
    3. Same—Paster ballots.
    The provision of the ballot law requiring a paster ballot to be pasted! on the side opposite the official endorsement is directory merely; the mandatory provision being that requiring that it beso attached as not to be visible; and hence the placing of a paster ballot upon the outside of the official ballot does not render it invalid if such paster ballot is not visible when the ballot is folded.
    Appeal from order of special term, directing the issue of at writ of peremptory mandamus requiring respondents to reassemble and declare the result of a town meeting, allowing to relators, the number of votes cast for them by certain paster ballots.
    
      John II. Cunningham (J. W. Houghton, of counsel), for app’lts Foley & Wing (John Foley, of counsel), for resp’ts.
   Herrick, J.

This is an appeal from an order made at a special term upon the relation of Henry Bradley and others, directing a peremptory mandamus to issue against the defendants and appellants, composing the board of town canvassers of the town of Minerva, Essex county, directing them to re-assemble in said town as such canvassers and declare the result of a town meeting held therein on the 1st day of March, 1892, allowing to the several relators the number of votes cast for them stated in the moving affidavits and called paster ballots, and directing said board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such paster ballots.

From the papers the facts appear to be substantially as follows. On the 24th day of February, 1892, a caucus or primary was held in the town of Minerva, Essex county, for the purpose of nominating candidates for town offices, and a ticket was nominated headed by William H. Sullivan for supervisor.

On the evening of the same dajr another caucus or primary meeting, called an independent caucus, was held in the same town apparently by those dissatisfied with the result of the first caucus, and a ticket for town offices was nominated headed by the relator Henry Bradley for supervisor. Certificates of both nominations were filed with the town clerk.

A protest was filed with the town clerk against his printing or delivering to the election officers any ballots for the ticket nominated at such independent or second caucus, on the ground that “Ho votes were cast in the town of Minerva at the last annual election or town meeting representing any party such as required by law, giving them authority to call a caucus to make nominations.

“ Second. The so-called certificate of nominations is not sworn and certified to as required by law and is 'not proper in form.”

The town clerk only delivered to the election officers official ballots containing the names of candidates nominated at the first caucus, which for convenience we will designate the “ Sulliyan ” ticket. ' The relators composing the Bradley ” ticket, ascertaining that no official ballots would be distributed with their names ■on, caused paster ballots to be printed; these paster ballots in addition to the name of candidates for other town officers contained the name of their candidate for excise commissioner.

The statement of result shows that ninety-nine ballots were cast for Sullivan for supervisor, the other candidates on his ticket receiving from 96 to 107, and that Bradley received 110 vote's for .supervisor, his associates receiving from 107 to 116 votes.

The votes for the several candidates on the Bradley ticket were .all cast by means of the paster ballot before described, the same .appearing to have been voted by pasting them on the official ballot containing the names of the candidates on the Sullivan ticket.

The defendants refused to count any of the votes for the Bradley ticket.

■The objections made to canvassing or counting the vote for the Bradley ticket are these:

First. That the candidates on the Bradley ticket were not regularly placed in nomination pursuant to §§ 2, 3 or 5 of chapter 262 •of the Laws of 1890, known as the Ballot Reform law, and that, therefore, they were not legally candidates, not entitled to be voted for and not eligible to office at the said town meeting.

Second. Because the paster ballots containing the names of the ■candidates on the Bradley ticket for town offices contained, in addition thereto, the name of a candidate for excise commissioner. There was the additional objection made to counting some of such' paster ballots, how many is not stated, that they were pasted upon the outside of the official ballot.

So far as appears from the papers in the case, the ballots deposited or voted were, so far as their exterior is concerned, in proper legal form, and it was the duty of the defendants to have counted them, no matter what defects appeared upon ■.the inside when they were opened. Inspectors of election and ■boards of canvassers have no business to decide whether a person voted for is eligible or not; it is their duty to count the votes •cast for any and every person whose name appears upon a ballot printed and endorsed as the law directs.

There is a procedure provided in the law for ballots that are for any reason defective, that will be referred to later on.

While it was the duty of the inspectors to count all the ballots in controversy here, and leave to the courts the office of determining the legal questions involved, they have not done so, and the •court must meet the questions as they are presented.

The first objection made to counting the votes cast for the Bradley ticket, that such ticket was not legally nominated, and that, therefore, they were not eligible as candidates, is not tenable.

The ballot law was not intended to restrict the choice of the people. It was intended, on the contrary, to secure to them greater freedom and independence in voting, to insure to them the utmost freedom in their choice of public officers.

The title of the law is, “ An act to promote the independence of voters at public elections, enforce the secrecy of the ballot and provide for the printing and distribution of ballots at public expense.”

To restrict the voter to the candidates placed in nomination by political parties or by petitions of citizens, is very far, it seems to me, from promoting independence in voting, and the law makes no such restriction, but provides for- the very reverse. Section 25 of chap. 262, Laws of 1890, as amended by § 12 of chap. 296 of the Laws of 1891, is in part as follows :

“ The voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. Any voter may take with him into the voting booth or compartment a printed ballot of his own selection or preparation, to be known as a paster ballot, containing the names of all the offices to be filled and of the candidates therefor for whom he desires to vote, * * * and the voter may paste the whole of said paster ballot on any of the official ballots.”

It will be observed that the statute says the voter may vote for any person for any office; and it recognizes the fact that he may desire to vote for some person or persons whose name is not upon any of the official ballots, and provides tbat'he may write or paste it on. It also affords him the means of making up an entire ticket to suit himself of names not upon the official ballots by means of the paster ballot The official ballot is simply a part of the machinery devised to insure secrecy and independence in voting, • is printed at public expense to insure uniformity in the ballots, and to save candidates the expense of printing, and thus cut off one reason or excuse for raising money to be used in fact for corrupt purposes ; while the law provides for official ballots it does not provide for official candidates, and it is not necessary that one’s name should appear upon the official ballot to enable the voters to vote for him.

The second objection to counting the Bradley ballots, the fact that the name of a candidate for excise commissioner was printed with the other town offices on the paster ballot, presents greater difficulties.

The votes cast for such candidate for excise commissioner cannot be counted for him because not upon a ticket legally endorsed as an excise ballot, as held by this court in the case of the People ex rel. Sherman v. Person et at, decided at this term. The serious question is, did the printing the name of the office of excise commissioner, and of a candidate therefor, upon the ballot, vitiate the ballot as to the candidates for other town offices ?

In a sense the unauthorized printing of the name of this office and the candidate therefor upon the town ballot made it a marked ballot, or a defective ballot, but that does not of itself vitiate the ballot, or justify the inspectors of election or board of canvasser's in rejecting it; it is only when it is marked with the intent that it may be identified that it is to be rejected, and that rejection is not to be by the inspectors. Section 16, chapter 296, Laws of 1891, provides that such ballots shall be preserved with a statement of the objections made to them, that they shall be counted in estimating the result of an election, and then provides for a judicial proceeding to determine their validity.

The ballot is not to be excluded until the intent is ascertained and determined by the court Nichols case, 129 N. Y., 407; 41 St. Rep., 713.

The only reason that is assigned for excluding these ballots from the estimate of votes is that they are in effect marked ballots. But the law assumes that there may be ballots with marks upon them that may be counted; otherwise why preserve them for the court to say whether they shall be counted or not. If all marked ballots are to be rejected; if the fact that some mark, name, or word not authorized by law appears on the inside of a ballot is of itself the evidence and proof that it was placed there with the intent that the ballot may be identified, there would be no obligation in preserving the ballot for the court; there would be nothing for the court to pass upon, nothing to determine except that there is something on the ballot not authorized by law. It seems to me that the plain meaning and intent of the statute is, that the court shall determine whether the mark on the ballot is placed there with the intent of subsequently identifying the ballot and tracing it to the voter, and if it can find no such intent, then the ballot is to remain as counted.

I realize the difficulties that must necessarily arise from such a construction; proof of a fraudulent intent must always be difficult and sometimes impossible; and permitting any ballot to be counted that has anything upon it except wliat the law authorizes doubtless opens the way to marking it with intent to identify the voter.

The other construction, that is, rejecting every ballot having anything upon it not authorized by law, without any further proof of intent, is also subject to serious objections, and would open the door to just as great dangers.

The ballots may be marked by the adverse party for the very purpose of having them rejected; dishonest election officers may mark them, to afterwards reject them in the count; and then having marked, and rejected them, immediately destroy them, as was done in a case recently before us, leaving no trace of their wrong doing, nothing for the court to pass upon; such a construction would place our elections completely in the hands of the innumerable boards of inspectors in the state; the rejection of a few ballots in each election district, or even a portion of them, changing the result of a state election.

Upon the whole it seems to me that the safest course is to leave nothing for the inspectors to do except to count the ballots in the box. They are prohibited from receiving any having any mark on the outside or not properly endorsed, and if anything appears on the inside of the ballot not authorized by law, to preserve such ballot ; then those interested have ample opportunity to deliberately investigate the matter, and after such investigation, if they think proper, present it to the court for its determination.

But whichever course may be best is not for the court to determine ; it cannot legislate, it can only Interpret and construe,, and I cannot see any other interpretation or construction to be given to the statute except the one I have indicated; that is, for the court to determine in each particular case whether the marks or unauthorized words were placed upon the ballots with intent to identify the voter. Was then the name of a candidate for excise commissioner placed upon the town ballot for the purpose of identifying the voter? There is nothing in the case before us to show* that it was; all the ballots for the Bradley ticket were alike in that respect, the same candidate appeared on all the ballots, and so far as the case discloses there is nothing to indicate any unlawful or corrupt intent, except the bare fact that the. name of such candidate appeared, not upon a ballot endorsed Excise as the law requires, but on the paster ballot for other town officers, and so far as appears in the case they had no separate ballot for excise commissioner.

To hold under such a state of facts that these ballots were marked for the purpose of identification within the meaning of the law would be to hold in effect that whenever any name, word, or mark not authorized by law appears upon a ballot, that that fact in and of itself is evidence that it was placed there with the intent of subsequently identifying the voter; such a holding or construction we liave already seen is not warranted by the wording of the statute. I, therefore, cannot find that the paster ballots in question were printed or marked with the intent that the same might be-identified; consequently they should not be rejected for that reason.

The remaining objection to be considered is that some of the-Bradley paster ballots, how many does not appear, were pasted on the outside of the official ballots. If the paster ballot is so affixed, to the official ballot as to disclose for whom the voter is voting, then the ballot should neither be received nor counted, because-then it would be in violation of the secrecy of the ballot, and would afford a means of identifying the voter; but in this case it. does not appear whether it was so affixed or not.

The provisions of the statute are .as follows:

“ 1st. That it shall be pasted on the side opposite the official endorsement.

“ 2d. A paster shall be so attached to the ballot that when the ballot is folded no portion of such paster ballot shall be visible,” Section 12, chap. 296, Laws of 1891.

A voter should not be deprived of his vote except at the behest-of some plain and clear requirement of the law. Reading the two-clauses I have quoted together it seems to me that the first one is directory merely; that the essential, and therefore the manda toyy one, is the second, that is the one that requires that it should be so attached as not to be visible.

The case does not show whether the paster ballots in question were so attached as to be visible or not, and the court has no right to assume that the law was violated. There is not sufficient evidence before us to warrant the court in rejecting the ballots for the manner in which they were attached to the official ballots.

Some of the affidavits state that some of the Bradley ballots were marked for identification, but do not state how they were so marked, or how many there were of them, and they have not been preserved as the law requires, so that we have nothing before us to pass upon or determine in that regard.

This disposes of all the objections made to counting the Bradley ballots, and we find in none of them any sufficient reason for rejecting such ballots.

Let the order for a peremptory mandamus be affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurs.

Mayham, P. J.

(dissenting)—I fully concur in all of the conclusions reached by my brother Herrick in this case, except that relating to the effect of voting on the town ballot for the commissioner of excise; but I cannot concur with him as to the effect of placing that name on the ticket. It appears to me that that was such a marked ballot and cast under such circumstances as to vitiate the entire ticket on which it was voted.

By § 38 of chapter 262 of the Laws of 1890, known as the Ballot Reform law, as amended in chapter 269 of the Laws of 1891, it is provided that, “ the names of candidates for the office of excise commissioner shall be printed on a different ballot from the one containing the names of candidates for other town offices. Such ballot shall be endorsed “ Excise,” and shall be deposited -when voted in a separate box, which shall also be marked “Excise." * * The ballots containing the names of candidates for other local offices shall be endorsed “ Town.” Each of the paster ballots of the Bradley ticket voted contained the name of John McCardle for commissioner of excise pasted upon the official ballot marked “Town.”

It is agreed that this vote cannot be counted for excise commissioner because not upon a ticket legally endorsed. People ex rel Sherman v. Person et al. It follows therefore that the name and designation of McCardle constituted no part of the ticket endorsed “ Town,” and was, as has been said in the prevailing opinion, in a sense an unauthorized name, and mark upon the town ballot Did it per se vitiate that ballot? Or must there be evidence aliunde the marked ballot itself that it was done for the illegal purpose of its subsequent identification ? It seems to me that a more direct and effectual method of evasion and nullification of the law could not well be suggested than that of placing an unauthorized name of office on an official ballot, and yet to hold that these were marked ballots, voted in violation. of the ballot reform law, and therefore not capable of being counted, will in effect disfranchise more than one-half of all the voters who voted at this town meeting. Consequences so grave and far reaching should not be visited upon the voter, unless the courts in administering this law are by its letter and spirit required to inflict such disfranchisement.

In interpreting this law, so vitally affecting the voter on. the one hand, and the great public interest to be subserved on the other, the court should carefully avoid what is sometimes called judicial legislation, by importing into it matters not placed there by the legislature; or on the other hand, what would be equally unauthorized, repealing by judicial interpretation any of its. provisions.

One of the leading purposes manifestly aimed at in the enactment of the law, was that the ballot cast by each voter should be 'absolutely secret. As was said by O’Brien, J., in the People ex rel. Nichols v. The Board of County Canvassers of Oneida County,. 129 N. Y, 402 ; 41 St. Rep., 713 : “ The general policy and scope of the act was well expressed in the title, ‘An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots .at public expense.’ ” In the discussion of the requirements of this act so far as it relates to the secrecy of the ballot, the judge uses this language : “ The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice, without the-possibility of revealing by the act of voting the identity or the political complexion of the candidates voted for.” The manifest object of the legislature in making the ballot absolutely secret was to minimize the great and growing evil of bribery of the voter, by removing- all possible means of knowledge on the part, of the bribe giver that the vote for which he gave, or contracted to give, the bribe, would be deposited according to contract, and further to secure to the employee immunity against the oppressive-coercion of his employer, and thus to secure to the employee-the right of a free ballot.

It is difficult to see how this central idea of secrecy, which seems to be the soul of the ballot reform law, can be effectual for any of the beneficial purposes for which it was intended, if the method adopted in the Bradley ballot can be adjudged to be legal,, and that ballot upheld and counted.

It does not seem sound or logical to hold that numbers give immunity, and that because there are over one hundred violations of the ballot law, that, therefore, the act escapes its condemnation ; such reasoning would not commend itself to our judgments as sound in almost any other moral or legal question. If but one, or ten or even twenty such ballots had been found in the-box, it will hardly be questioned that they would be denounced as marked ballots, and rejected from the count, unless this method of marking ballots can be held to be allowable under the law. If' it can be held that ballots marked in this manner must be counted for all the candidates properly voted for on the ticket designated “Town,” then the door will be opened at every town election for persons desiring to promote the election of the candidates of their choice to place on a paster ballot the name of some person for an office not to be voted on the town ticket, and with that sure mark of identification contract for the payment of a bribe to each person who receives that ticket from him, and shows by the vote when canvassed that the contract was performed; and that the same scheme may be worked by an employer upon his employee and the purity and freedom of the ballot be thus completely destroyed and the law which was designed to protect the purity and sanctity of the ballot become an instrument of most gigantic fraud.

But it is urged that by § 35 of the ballot reform act, as amended, it must be shown that the vote was marked and cast with the intent that it shall be afterwards identified, before the ballot is vitiated, and that the court must find that intent before the vote can be rejected. The language of that section as amended upon this subject is as follows: “ Ho voter shall place any mark upon his ballot, or do any other act in connection with a ballot, with the intent that it may be identified as the one voted by him; no person shall place any mark or do any other act in connection with a paster ballot with the intent that it may afterwards be identified as having been voted by any particular person. When a ballot has been deposited in a ballot box, upon which or upon a paster affixed thereto a writing or mark of any kind has been placed by the voter, or by any other person to his knowledge, with intent that such ballot shall afterwards be identified as the one voted by him, the same shall be void and of no effect. ”

It is manifest that the legislature by this provision, required that the marked ballot must, to be adjudged void, be deposited by the voter with knowledge, and with the intent that it shall be afterwards identified, but the act furnishes no rule of evidence by which the court shall judicially declare and decide that question of knowledge and intent

Resort must therefore be had to the general rules of evidence-for the determination of those facts. We start with the presumption that knowledge of the law is to be imputed to the voter, and that when he voted for a commissioner of excise on the town ticket he did so knowing that that office could not be legally voted for on such a ticket, and that his name on it made such a ticket a marked ballot. The town ticket must contain only the names and designation of the officers to be voted for on it. In the case of the People ex rel Nichols v. The Board of Canvassers, supra, Gray, Juclge, in discussing that question, uses this language: “ The plan embodied in the law was to have a uniform ballot. That essential feature was secured by provisions requiring all ballots to be prepared by a public officer and to be exactly alike in every possible respect externally in the official endorsement, and differing internally only in the candidates for office upon the ballots prepared for different political parties.”

This language applies as well to a paster ballot voted upon an official endorsement as to the official tickets printed in full by the clerk, or under his direction. With the legal presumption to which we have referred, and which obtains in this case, it follows that the voter who deposited the town ballot containing the name and designation of a candidate for excise commissioner did so charged with the knowledge that he was voting a marked ballot. Did he intend that it should afterwards be identified as a ballot voted by him ? Of this there is, and from the very nature of the case there can be, no proof, except from the legal inference to be deduced from such act. The law raises a presumption that every person intends the legal consequences of his acts. One of the legal consequences of the act of voting a marked ballot is that it may be identified, and if that was the consequence intended by him, then both conditions to render the ballot illegal, void and of no effect are established.

It is true that the methods of reasoning by which this conclusion is reached may be somewhat subtle, yet the difficulty to be ■encountered in the enforcement of this much needed and salutary law not only justifies strict construction, but calls upon the courts to adopt all the legal and legitimate means in their power to give ■effect to its provisions. In the present case, as has been suggested, the rejection of the ballots thus shown to be marked may look like the disfranchisement .of the voters, but that was the result of disobedience of the law. In the case of People v. Board of Canvassers, cited supra, and upon that subject, O’Brien, J., says: '“■But it is said that this result will disfranchise the electors who cast these ballots in good faith, believing that they were proper ■official ballots.

“The answer is that when an elector attempts to express his will at an election by the use, through either design or accident, of the ballots which the law declares shall not be counted, the courts have no power to help him. Had these ballots been misplaced "by design or some preconcerted arrangement between the county clerk and the candidates whose names appear upon them, or some of them, the voter using them might be as innocent as they appear to be in the case at bar, but to hold under such circumstances that the votes must nevertheless be counted would be to suggest an .easy method of defeating the fundamental purpose of the statute.”

These reasons apply with equal, and I think with greater force to the altered ballot, by .the use of a name and an office not entititled to be voted for in the ticket, as to the numbering on the label " or endersement on the outside of the ticket. It is safe to say that if this method can be resorted to, and ballots thus marked can be voted and counted, the facilities for bribery and coercion have been vastly increased bv the provisions of what was intended to be a ballot reform law. But it is insisted that tlic construction contended for is dangerous in this, that the inspectors of election would have it in their power to throw out ballots on the grau nd that they were marked, and thus completely change the result of an election. I do not think that such a result could follow, for the reason that they are required to preserve all defective ballots, and this kind of ballot is a marked, and therefore defective ballot, and the inspectors would have no right to destroy it, but must retain it, and thus the questions as to the character of the vote, and the right of having the same counted, could be brought before the courts for their determination.

It is only in case of improper or unauthorized label or caption, appearing on the outside of the ballot, that the inspectors are authorized- and required to reject the ballot altogether. If the alteration or defect appears on the inside of a ballot, which can be known to the inspectors only on the canvass of the votes, the inspectors are to treat it as a defective ballot, and preserve and return it with their certificate, so that a party aggrieved or having any interest in the result may take the case to the courts, where the right of the parties may be judicially declared, as in the case at bar. The question, therefore, is not what the inspectors may do, but what the court will do, where the court is satisfied from the certificate of the canvassers that ballots sought to be counted are concededly marked, so that they may be identified if desired,, and when the voter knew, or is presumed to have known, that he was voting a marked ballot at the time of casting the same. Under such circumstances, it seems to me, that the intention of the voter must, as I have attempted to show, be presumed from his act, -and that any attempt on the part of the court to find an innocent motive, and thus uphold the ballot, would be vesting in the court the exercise of a discretion not given by law, and while its exercise may not be fraught with the danger that might be apprehended from the exercise of such discretion by the 'inspectors of election, yet it is one which the courts should not voluntarily assume where, by the application of legal rules, the ballot is by the law denounced as a marked ballot.

I am, therefore, of the opinion that the order awarding a peremptory writ should be reversed and the writ should be quashed.

Order affirmed, with fifty dollars costs and printing disbursements.  