
    The People ex rel. Lewis A. Abrams, Petitioner, v. John R. Voorhis et al., Defendants.
    (Supreme Court, New York Special Term,
    October, 1904.)
    Election law — Effect of ballots, lighter in weight than those designated by the custodian of primary elections, being used.
    Under the Primary Election Law, which provides that the custodian of primary elections shall prescribe the sample paper for use at primaries, and that “ ballots not conforming to the provisions of this section shall not be counted at any official primary election,” proof that the supply of paper originally prescribed by the custodian .of primary records for a primary election having become exhausted, some paper lighter in weight and color was used and that the ballots cast for the successful ticket were printed on the latter kind of paper, is insufficient ground for ordering a recount and setting aside the declared result of the election where it was conducted without fraud and it is clear that the result thereof was not affected by the use of the different kinds of paper.
    It is a fundamental principle of constitutional law that one entitled to vote shall not be deprived of the privilege by the action of the authorities.
    
      The petitioner, in his own behalf and in behalf of others named upon an official primary election ballot, applied for a writ of mandamus, requiring the board of primary election inspectors in the first primary election district in the thirty-first assembly district to produce all ballots used at said election, and for a recount of said ballots, and to compel the board of elections of the city of ¡New York to issue to the petitioner and to the other persons mentioned on said election ballot a certificate of election. The ballots having a majority were printed upon paper lighter in weight than were the ballots upon which the ticket of the petitioner was printed.
    The Primary Election Law provides that the custodian of primary elections shall prescribe the sample paper for use at primaries, and that “ ballots not conforming to the provisions of this section shall not be counted at any official primary election.”
    Further facts appear in the opinion.
    Samuel D. Lasky, for petitioner.
    Charles W. Dayton, opposed.
   Leventritt, J.

It is a fundamental principle of constitutional law that “ one entitled to vote shall not be deprived of the privilege by the action of the authorities.” Cooley Const. Lim. (7th ed.) 926. No charge of fraud is made in this case; it is not claimed that the irregularity has inhibited the expression of the elector’s will, or- that the voters whom it is now sought, in effect, to disfranchise, would have voted other than they did. The right to reject the ballots is rested on the fact that some of the paper was lighter in weight and color than that originally prescribed by the custodian of primary records. But it appears that all the paper of the prescribed quality had become exhausted and that on application the custodian directed the use of the paper on which the ballots objected to were printed. The default was not the default of the voter or the candidates, or of any person acting in collusion with them. If any, it was on the part of the custodian. He is required to furnish to party committees or to electors the paper designated by him. His failure to provide an adequate supply should not in this case, reflecting the utmost good faith, he invoked against electors where it is clear that the votes would not have been cast differently than they were in fact. People v. Cook, 8 N. Y. 67.

The apparently mandatory provision that ballots not conforming to specified provisions cannot be counted must be construed as directory merely as far as the situation here disclosed is concerned.

Motion denied, with costs.  