
    The People ex rel. Frank J. Sherman, App’lt, v. John Person et al., Composing the Board of Canvassers of the Town of Milton, Resp’ts.
    
      (Supreme Court, General Term, Third, Department,
    
    
      Filed May 16, 1892.)
    
    Elections—Town meetinqs—Ballots.
    A ballot endorsed “ excise” is an official ballotfor the purpose of voting for excise commissioners; but is not an official ballot for the purpose of voting for other town officers; and a ballot so endorsed but with the names of other town officers printed upon it, or a paster ballot for such officers pasted upon it, is not properly endorsed under the law, is not an official town ballot and cannot be legally received or counted by the inspectors.
    Appeal from an order of special term, denying motion for mandamus.
    
    Brackett, Butler & Baucus (Edgar T. Brackett, of counsel), for app’lt; 1J. E. McKnight and John Person (J & L'Amoreaux, of counsel), for resp’ts.
   Herrick, J.

is an appeal from an order of the special term denying a motion made for a peremptory mandamus to compél the defendants to recount the votes cast for the various candidates for supervisor at a town meeting of the town of Milton, Saratoga county, held March 1, 1892, and directing that the ballots cast for Eben S. Lawrence for supervisor that were endorsed “Excise,” or posters attached to ballots marked “Excise” cast for said Lawrence, be declared invalid, and directing said town board not to count such ballots and directing said board to declare the result and issue a certificate of election to the candidate having the greatest number of ballots cast for him, without counting said votes endorsed “ Excise ” or posters attached to ballots endorsed “ Excise.”

There is some dispute as to the facts set forth in the moving papers, but there are enough uncontroverted to enable the court to dispose of the matter; the material facts are undisputed. At the town meeting iri question the relator, Frank J. Sherman, and one Eben S. Lawrence, were competing candidates for the office of supervisor, and at such election there were four tickets, two for town officers, one headed by the relator Sherman, and the other by Lawrence; and two excise tickets, containing the name of a candidate for excise commissioner on each.

There were two ballot boxes, one marked “ Town ” and the other marked “ Excise.”

In the certificate of election signed by the board of town canvassers, Eben S. Lawrence is credited with having received 576 votes, and Frank J. Sherman with having received 571. Both parties aver that, three ballots endorsed “ Excise,” having pasted upon them paster ballots containing the names of Eben S. Lawrence and his associate candidates, for town offices upon them, were found in the ballot box marked “Town," and that such paster ballots were counted for said Lawrence for supervisor.

It is also averred by both parties that similar paster ballots were found in the “ Excise ” box, and that they were also counted for Lawrence.

The relator in his moving papers alleges that there were five such paster ballots found in the excise box; the defendants allege' that there were found certain excise ballots with such paster ballots upon them in the excise box, but do not state how many there were so found; and they distinctly state that the 576 votes credited to Lawrence included said paster ballots, and they do not deny that five such ballots were found in the excise box.

The watchers present in the interest of the Sherman ticket objected to the counting of the paster ballots pasted on the ballots endorsed “ Excise,” and asked to have them preserved pursuant to the provisions of the ballot act; such ballots were not preserved, but burned with the other ballots.

Whether done ignorantly or willfully, the case must be treated as if the ballots were still in existence and preserved as the law requires.

We have a full and complete description of such ballots so far as is necessary to enable us to determine what should be done with them. We know with reasonable certainty how many there were of them; and we cannot allow the object of the law to be defeated by a wanton or ignorant violation of its provision. Were the paster ballots thus destroyed properly counted for Eben S. Lawrence as a candidate for the office of supervisor ?

The board of canvassers and the court below seem to have fallen into error as to what is an official ballot under the law, and to have held that because the ballot endorsed “ Excise ” was an official ballot, that, therefore, a paster ballot for any officer or officers might be affixed to it and counted by virtue of the provisions .of § 25 of chap. 262 of the Laws of 1890, commonly known as the “Ballot Reform Law," or “Ballot Law.” The portions of that section pertinent to this question read 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, which paster ballot may be gummed on the back thereof, and the voter may paste the whole of such paster ballot on any of the official ballots below the •stub.”

The permission to paste the'paster ballot on any official ballot, together with' a misconception of what is an official ballot, has •evidently caused the difficulty in this matter.

Under the law of 1890 there were as many official ballots as there were tickets nominated, and in addition a blank ballot, but the candidates for all offices were to be on a single ticket, the -elector could only vote one ballot, and there was only one ballot box provided for to receive the voted ballots, and when the statute said the voter could paste his paster ballot on any of the official ballots, it simply meant any one of the ballots that should be printed for the legally nominated candidates, and also the blank ballot. So long as all offices to be voted for were to be voted for upon a single ballot, and only a single ballot could be voted, and there was only a single box to receive them, there was not much chance for misapprehension. Bitt in the year 1891 the law was amended so as to provide for an additional ballot and an additional ballot box, so that now we have two kinds of official ballots, subdivided into as many more as there may be candidates or tickets legally placed in nomination.

The law as amended must be so construed, if possible, as to preserve its spirit, and give effect to its intent. At town elections the relator can now vote two ballots; both must be, however, •official ballots.

This leads us to consider, what is an official ballot?

One of its essential features is a proper and legal endorsement, . and a ballot not legally endorsed cannot be received or counted.

Section 17 of the ballot law, among other things, provides as follows: “ On the back of each ballot shall be printed in type known as great primer Eoman condensed capitals, the endorsement 1 official ballot for —-,’ and after the word 1 for ’ shall

follow the designation of the polling place for which the ballot is prepared, the date of the election, and a fac simile of the signature of the county clerk. The ballot shall contain no caption or other endorsement, except as in this section provided. * * * Whenever candidates are to be voted for only by the voters of a particular district, town, village, city or county, the names of such candidates shall not be printed on any other ballots than those provided for use in such district, town, village, city or county, respectively.” In the year 1891 the ballot law was amended in various respects, among other things by adapting it to the election of town officers ; prior to that time all officers were to be voted for •on a single ballot. The law was so amended as to provide for a separate ballot for excise commissioners and for two ballot boxes, whereas under the law of 1890 only one ballot box had been allowed.

Section 17. “ There shall be but one ballot box at each polling place for receiving all ballots cast for candidates for offices.”

• Section 38, chapter 296, of the Laws of 1891, provides as follows : * * * “ The names of candidates for the office of excise commissioner shall be printed in a different ballot from the one containing the names of candidates for other town offices, Such ballots shall be endorsed ‘ Excise,’ and shall be deposited when voted in a separate ballot box, which shall also be marked ‘ Excise.’ They shall be furnished by- the clerk as the other ballots are, and shall be substantially in the same form, but not. less than six inches long. The ballots containing the names of candidates for other local offices shall be endorsed 1 Town.’

Section 29 of chapter 296 of the Laws of 1891 provides that “ No inspector of election shall deposit in a ballot box, or permit any other person to deposit in a ballot box on election day, any ballot which is not properly endorsed and numbered.”

Section 31 of the same law provides that “No ballot that has not the printed official endorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act.” The exception relates to the provision made for voting when official ballots have not been delivered or have been destroyed. It will thus be seen that the proper legal endorsement of the ballot is regarded as an essential and vital feature of the ballot law; the reasons for so regarding it must occur to every one, and it is not necessary to recapitulate them now.

It seems to me unnecessary to argue that an official excise ballot is not an official ballot for other town officers, or vice versa.

In the Nichols case, 129 N. Y., 395; 41 St. Rep., 713, the ballots rejected by the court were, in a sense, official ballots: that is, they were properly endorsed if used in the proper district; but the official ballot for election district No. 1 was not the official ballot for election district No. 2.

So the ballot endorsed “ Excise ” is an official ballot for the purpose of voting for excise commissioners, but is not an official ballot for the purpose of voting for other town officers; and a ballot with the names of candidates for town offices printed upon it and endorsed “ Excise ” would not be legally endorsed under the law, and would not be an official town ballot within the meaning of the statute, and could not be legally received or counted by the inspectors, and the legal effect is not changed if the name of the candidates for town officers are printed on another piece of paper, and that paper pasted on the ballot endorsed “ Excise.”

To permit this to be done, would open the door to fraud.

The voter is entitled to vote the town ticket and the excise ticket; he could thus vote his choice for town officers, by means of the ballot endorsed “ Town,” and put a paster for the same officers upon the excise ballot, and in that way vote twice for the same officers. It was attempted to answer this objection by saying that both the excise and town ballots being numbered alike, the fraud would be detected. The learned counsel forgot that the numbers are on the stubs, that the stubs are torn from the ballots before they are deposited in the box, so that when the ballots-come to be counted they have no numbers, so that the fraud could not be detected.

If any voter voted both ballots, the number in the box might over-run the poll list, but in drawing out to equalize the poll list-the beneficiary of the fraud is no more likely to have the ballots cast for him drawn out than is the person injured by the fraud.

The court below in holding that these paster ballots should be ■counted did so upon the theory that effect must be given to the intentions of the voter. The answer to that is contained in the principal opinion in the Nichols case, 129 N. Y., 401; 41 St Rep., 713, as follows :

“ Tire right to vote secured to the citizen by the constitution must be exercised in the manner and subject to the regulations lawfully prescribed by the legislature in respect to the time when and the method by which his will is expressed, and in order to render his will and intention effectual at the election he must comply with at least all substantial requirements of law.” And again' at page 408 the court says:

“ The legislature has forbidden the elector to cast such a ballot. It has prohibited the inspectors from placing it in the box and the canvassers from counting it. The case could be no stronger had it in terms declared such a ballot absolutely void for all purposes. Bui it is said that this result will disfranchise the electors who cast these ballots in good faith believing that they were the proper' official ballots. The answer is that when an elector attempts to ■express his will at an election by the use, through either design of accident, of ballots which the law declares shall not be counted, the courts have no power to help him. * * * The law contemplates that the elector will not blindly rely upon any one, not even the election officers, in the preparation of his ballot. If he is handed an official ballot with a distinguishing mark upon it, or an improper endorsement, he is not obliged to vote it but may procure a proper ballot In this case it cannot be said that the electors were obliged to use these ballots or omit to vote at all. It was their duty to see to it that so important a part of the ballot ■as the endorsement was in conformity with the statute. * * * That the use of these ballots was at best a wholly unnecessary ■and thoughtless act on the part of the voters who cast them, is entirely evident. But even if it could be said that those electors had no knowledge or means of knowledge in regard to the improper endorsement, and that they could not without some incon-' venience provide themselves with ballots such as the law required, we would still be obliged to hold that it would be far better that their votes should be deemed ineffectual than that the fundamental purposes of an important public statute should be subverted, .and in the struggle to save these votes by judicial construction the door should be thrown open for evasions of the statute which might revive evils far more dangerous to the public welfare than ■can possibly, under any circumstances, follow the exclusion of a few hundred votes in a single county, cast by voters who, at least, as all must admit, neglected to observe important requirements of the law.”

Also the language of Chief Justice Ruger, in the same case,1 found at page 420: “ The purpose of the act seems to require that these provisions should be held to be mandatory, and that a disregard of them upon any pretense whatever should constitute a violation of the law and a forfeiture of any benefits sought to be derived from such illegal ballots.”

The language I have quoted applies with peculiar force to the facts in this case, and at the same time shows how important the court regards the proper endorsement of the ballot, and the strictness with which the provisions of the ballot law are to be construed.

There is another reason why the paster ballots pasted upon the ballots marked Excise and found in the town box should not be counted. In the Nichols case great stress was laid upon the fact that using ballots in one district endorsed for another district afforded a means of identifying the voters, destroyed the secrecy of the ballot, and opened the door for the corruption of the voters, thus nullifying the intention of the law, and that for those reasons the ballots should not be counted. So the use of ballots marked Excise to vote for town officers would afford an easy means of identification, and would nullify the law. If paster Ballots can be received and counted under the circumstances disclosed in this case, then the provisions as to endorsement are of no effect. The word Excise is not the legal, official, endorsement of the ballot for town offices, nor the word Town the legal, official endorsement for the excise ballot, and if the provisions of the statute as to not counting ballots not properly endorsed are to be •enforced, then the paster ballots for town offices found upon the ballot endorsed “Excise ” should not be counted.

For these reasons the order of the court below should be reversed and a peremptory mandamus issue directing the defendants to recount the ballots cast for the office of supervisor, and to exclude from such count, and refrain from counting, the paster ballots found on the ballots marked “ Excise,” and that they issue a certificate of election to the candidate for supervisor receiving the greatest number of ballots exclusive of ballots for supervisor pasted on the ballots marked “Excise.”

Order reversed, with fifty dollars costs and printing disbursements, and let a peremptory mandamus issue in accordance with the views expressed in this opinion.

Mayham, P. J., and Putnam, J., concur.  