
    The People ex rel. George H. Bush v. Henry E. McKenzie et al. The People ex rel. George H Bush v. The Board of County Canvassers of Ulster County.
    
      (Supreme Court, Special Term, Albany County,
    
    
      Filed November 21, 1892.)
    
    1. Elections—Marked ballots—Mandamus.
    The court will only compel election inspectors by mandamus to do what it was their duty to have done.
    8. Same—Weight oe proof.
    Where the relator alone makes affidavit on information and belief that the proper officer declared his belief during the' canvass that certain ballots were marked for identification, while an inspector, poll clerks, ballot clerks and watchers make affidavit that they were present and that no.officer declared such belief, the weight of proof compels a. determination that no such objection was made.
    3. Same—Retention of ballots.
    Ballots alleged to have been marked for identification can only be marked by the inspectors during the canvass, and it is improper for them or a single one of them to afterwards so mark and attach such ballots to ' the statement of canvass.
    4. Same.
    Where ballots not objected to at the time of being canvassed are preserved in violation of law, out of possession of the officers, the court will not direct them to be attached to the statement of canvass.
    Motions for writs of peremptory mandamus to compel the inspectors of election in the first and second election districts of the town of Esopns, Ulster county, to reconvene and attach to their statements of canvass certain ballots alleged to have been illegally ■-"marked, with the statement required by law ; and also to compel the board of county canvassers to allow such ballots to be so attached to the statements of canvass, and to forbid them from canvassing the statements from such districts in the meantime.
    
      Linson & Van Buren (J. N. Fiero, of counsel), for relator; John J. Cloonan, for board of canvassers; G. D. B. Hasbrouck and C. F. Cantine, for some of the inspectors of election and for James Lounsberry, intervening.
   Herrick, J.

These are motions for writs of peremptory mandamus to the above named defendants.

The applications are made upon the affidavit of the relator, who was a candidate for member of assembly at the recent general election; he states that at such election there were in the first election district of the town of Esopus, in Ulster county, fifteen paster ballots pasted upon the official ballots furnished for use at said district at said election; each and every one of which paster ballots was marked either by the person who cast the said ballot or by some other person, for the purpose of having the same identified. That said paster ballots contained the names of the candidates of the republican party for the several offices to be voted for at said election; that upon each of such paster ballots there was pasted a paster ticket upon which was printed the name of William Luby, a candidate for coroner. In one of the above cases he is described in the moving affidavits as the democratic and in the other as the republican candidate for coroner. It is further alleged that some of the paster tickets • containing the name of said William Luby were pasted upon the paster ballots upside down, and the corner of each was cut off at a sharp angle. The same state of facts is alleged as to district number two, except the posters were eleven in number and each one is alleged to have been pasted upside down upon the paster ballots.

The relator further states, upon information and belief, that during the canvass, or immediately after its completion, some of the election officers or authorized watchers declared his or their belief that such paster ballots had been marked for the purpose of identification. He also alleges that the inspectors of election or some of them knew and believed that such ballots had been marked for identification; but that notwithstanding such knowledge and declarations the said inspectors did not write on the back of such ballots the words “ objected to because marked for identification ” or any mark in substance to that effect, and did not in any way designate said ballots or sign their or any of their names thereto ; that they did not attach any of said ballots to their statement of canvass, or to the certified copies thereof, but that they kept said ballots and now have them in their possession.

Upon that statement of facts he asks that the inspectors of election be directed to “ reconvene and attach to their statement of canvass, or to the certified copies thereof, the said marked ballots, now. in the possession of them or any one of them, with the statement as required by law, that the counting of said ballots was objected to.” And in the proceedings against the board of county canvassers, it is asked that such board allow the inspectors of election to attach to their statement of canvass the marked ballots referred to, and that in the meantime such board be forbidden from canvassing the statements from such election districts. It will thus be seen that the question for the court to determine upon this motion is not whether the ballots' were in fact marked for identification, but whether the inspectors of election should correct their statements of canvass by attaching to. them the ballots that the relator claims were marked for identification. The court will only compel the inspectors to do what it was their duty to have done.

The law provides as follows : “ When an inspector of election or other election officer or duly authorized watcher shall, during a canvass of the votes, or immediately after the cojnpletion thereof, declare his belief that any particular ballot, paster or paster ballot affixed thereto has been written upon or marked in anyvway for the purpose of identification, the inspectors or canvassers shall write on the back of such ballot the words objected to because marked for identification,’ or words in substance to that effect, and sign their names thereto, and attach each such ballot to their written statement of the result of the canvass.” Section 114, chap. 680, Laws of 1892.

The first thing to be done then to authorize the inspectors to attach the ballots to the statement of result is that some election officer or watcher should declare his belief that the ballot has been marked for identification; unless that is done they are neither authorized or required to attach such ballots to the statement.

It was held in People v. Shaw et al., 133 N. Y., 493 ; 45 St. Rep., 866, that where the objection was not taken before the board of town canvassers that the ballots were marked for identification, the court could not consider that objection afterwards. That was a case where upon a paster ballot for town officers there was also printed the name of the office of excise commissioner and of the candidate therefor. The objection was made 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.” Subsequently it was claimed that they were marked ballots, but the court held that that question was not before it.

The relator says he is informed and believes that such objection, or rather expression of belief, was made ; and his allegation upon information and belief is all that appears before me to show that such necessary objection was made.

On the part of the defendants there is presented as to district number one the affidavits of one of the inspectors, two watchers, a poll clerk and a ballot clerk, and as to district number two, the affidavits of one inspector, two poll clerks, one ballot clerk and a watcher, all swearing positively that they were present during the canvass of the votes polled in their respective districts, and thano inspector of election, election officer or watcher declared, his belief that any ballot or paster or paster ballot had been written .upon or marked for identification. And they also swear that no ballots were marked with the words “.objected to because marked for identification,” or words in substance to that effect.

Under such circumstances, where there is on the one side but a single affidavit, and that upon information and belief, and opposed to it that of so many persons who were in a position to have personal knowledge, and who swear positively to the contrary, I am compelled to hold that as a matter of fact no objections were made at the time of the canvass of the votes, or immediately thereafter, that such ballots were marked for identification. But counsel for the relator says that the object of the statute was to have the ballots preserved for the court to act upon, and that as the ballots have been in fact preserved, its object has been accomplished, although in an irregular manner; that the law should be liberally construed. The law should be liberally construed to effect its purposes; among other things, to promote honest elections and an honest declaration of the result. To sanction a practice such as is contended for here would, it seems to me, open the door to fraud and sharp practice, instead of promoting an honest declaration of the result.

The ballots, it appears, have been preserved. They have been preserved in violation of law. Having been voted, and no objection having been made to them as marked for identification, they should have been destroyed. Section 115, chap. 680, Laws of 1892.

. I n providing for the preservation of ballots challenged as marked for identification, the law has provided certain safeguards to identify the ballots and prevent imposition and fraud. In addition to having written upon them'the words heretofore mentioned, it also requires that each inspector shall sign his name thereto; the. purpose of this is obvious. None of these safeguards appear in this case.

The ballots were preserved, but how. They were, as appears from the affidavits, left in public places, apparently in the buildings where the elections were held in the respective districts; the inspectors did not keep them in their personal possession.' The ■danger of such action is obvious. Strangers could obtain possession of them, tamper with them, mutilate or mark them. Ballots not objected to at the time of being canvassed ; preserved in violation of law; out of the possession of the officers; exposed to the •dangers I have suggested, I do not think should now be attached to the statement of the canvass. A construction of the law that would permit it would be lax, not liberal. It would invite sharp practice. I do not mean to intimate that there has been any in this case, but if the procedure contended for is sanctioned now, it invites sharp practice and tampering with the ballots hereafter. In fact the only inspector sworn from district number two swears that no such ballots as above described were voted in his district.

It appears that since the proceedings were commenced, the chairman of the board of inspectors in each of said districts, by permission of the board of canvassers, attached to tire statement of canvass theretofore filed with the board ballots of the kind in question, alleged to have been marked for identification ; and endorsed thereon in substance that they “ were returned as objected to because marked for identification.” There had been no meeting of the several boards of inspectors authorizing any such action to be taken; and it appears to have been the individual action of the chairman. As we.have seen, the affidavits show that the ballots were not marked during the canvass, or immediately thereafter, as objected to because marked for identification, or with that in substance. That was the only time when such action could be legally taken.

The proceeding was wrong. There is no authority in law for it; a single inspector cannot act for the whole board, and under the facts as they now appear the board itself would have no right to do what a single member of it has assumed to do. The alleged marked ballots so attached to the statements of result since they were originally filed must be removed from such statements before being canvassed by the board of canvassers.

The several motions must be denied, with ten dollars costs in each proceeding. Let the orders be entered accordingly.  