
    The People of the State of New York ex rel. H. Marvin Wells, Respondent, v. Frederick Collin and Others, Composing the Common Council of the City of Elmira, N. Y., for the Years 1896 and 1897, and Constituting the Canvassing Board for the Purpose of Canvassing the Election Returns upon the City Election Held March 2, 1897, Appellants.
    
      Election Law of 1896 — a voter of a split ticket must place his “cross X mark” in the “voting space’’ before the name of his candidate—if placed before the name, but without the “ voting space,” the ballot is void.
    
    The purpose of the Election Law (Chap. 909, Laws of 1896) was to secure secrecy to the voter, and to that end it is imperative that he should strictly pursue the method prescribed by the act for his designation of the person for whom he intends to vote.
    The provisions of section 81 of that act, requiring a ballot to contain, at the left of the name of the candidate, “ a voting space” in Which to designate his candidate by a “cross X mark,” taken in connection with those of section 105, making it unlawful to use a mark other than that described, and then “ only in the circles or in the voting spaces to the left of the names of candidates,” and further stating that “If the elector desires to vote a split ticket, that is, for candidates of different parties, he must not make a cross X mark in the circle above the name of any party, but shall make a cross X mark in the voting space before the name of each candidate for whom he desires to vote,” constitute mandatory exactments that the voter of a split ticket must place his cross X mark in the “voting space” to the left, of the name of the candidate for whom he wishes to vote, and if he places it before the name of the candidate, but outside of the “ voting space,” the ballot must be rejected.
    This construction is not affected by the fact that the Legislature has failed, in the instructions directed by section 81 to be given to persons who wish to vote a split ticket, to state explicitly that the cross X mark must be placed in the “voting space," but has merely provided “ To vote a split ticket, that is, for candidates of different parties, the voter should make a cross X mark before the name of each candidate for whom he votes,” nor by the fact that section 81 of chapter 810 of the Laws of 1895 directed that in such a case the cross X mark should be placed “in the space before his name.”
    In view of the provisions of section 105 of the act of 1896, contained immediately after the provision that “it shall not be lawful to make any mark upon the official ballot other than the cross X mark used for the purpose of Voting,” viz., that “ Any ballot upon which there shall be found any mark, other than the cross X mark used for the purpose of voting, or a name or names written thereon, otherwise than as heretofore provided * * * shall be wholly void and no vote thereon shall be counted,” a ballot which has a cross X mark upon it, which is neither in the “circle,” nor in the “ voting space,” has a mark upon it that renders it void, as such a mark is not one “ used for the purpose of voting.”
    Landon, J., dissented.
    Appeal by the defendants, Frederick Oollin and others, composing the common council of the city of Elmira, N. Y., for the years 1896 and 1897, and constituting the canvassing board for the purpose of canvassing the election returns upon the city election held March 2, 1897, from an order of the Supreme Court, made at the Chemung Special Term and entéred in the. office of the clerk of the county of Chemung on the 20th day-of March, 1897, directing that a jDeremptory writ of mandamus- issue commanding them to reconvene and recanvass the votes cast'for the office of alderman in the third ward of the said city of Elmira, and, upon that recanvass, to count as valid certain ballots rejected by the inspectors as void, and which were not counted upon the former canvass of the said election.
    The relator-was a candidate for alderman in -the , third ward, in the city of Elmira, at the charter election held in such city on March 2, 1897. At sucli election, certain ballots were' cast in the several election districts in that ward, which the inspectors of election rejected as void, and so returned to the canvassing board, but which the relator claimed were valid votes and should have been counted. He thereupon presented to such board his petition requesting it to count the votes so returned to them as void by the inspectors. The board refused such request. ' The relator thereupon procured from a justice of this court, under the provisions of section 114 of the Election Law (Laws of 1896, chap, 909), an order requiring such board to show cause at a Special Term of this court, to be held in Elmira on March 20,1897, why it should not comply with the request so made. On the return of such order, the court made a further order that a peremptory mandamus issue to the members of such board, directing it to reconvene and to count certain ballots, designated in such order, and writ, as valid. In pursuance of such order, the peremptory.writ of' mandamus was issued, and from snch order and writ the board of canvassers take this appeal.
    By the original canvass, as it appears from the return of the inspectors of election,.there was a tie vote for alderman in the third ward. By counting the votes directed by such order to be counted, the relator would have a majority of votes for such office and would be entitled to a certificate from the board to that effect.
    
      S. S. Taylor, for the appellants.
    
      James Bacon and Judson A. Gibson, for the respondent.
   Parker, P. J.:

The sole question upon which the validity of the ballots in question turns is whether a voter, who desires to vote for candidates of different parties, must place the cross X mark in the “ voting space,” so called, opposite the name of the candidate for whom he would vote; or whether it will be sufficient if he place it before the name of such candidate, but not within the voting space. Or, rather, the question is whether, if he places it' before the name, but without the space, the ballot must be rejected.

The solution of this question depends upon the construction given to the provisions of chapter 909 of the Laws of 1896, commonly known as the Election Law. And I think it will be conceded by all parties that, in determining the validity of a vote cast under the provisions of that act, the court must determine not merely what was the intention of the voter, but whether he has expressed that intention in the manner provided by law. The evils attending bribery and intimidation of the voter had become so flagrant that, within a comparatively few years, the Legislature set itself about providing some system of voting that would at least lessen, if not entirely prevent that evil, and one of the principal features of that system was the absolute secrecy of the ballot. The “ Ballot Reform Act” (Laws of 1890, chap. 262), one of the earlier laws passed for the purpose of accomplishing this result, was entitled “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.” JSTo citation of authority, nor extended argument, is needed to show that, in all subsequent amendments and acts, this purpose has been steadily maintained. Every one at all familiar with the history of legislation upon this subject will agree that the primary object of all the statutes, the present one included, is to require the voter to so cast his ballot that there will be no possibility -of revealing, by the act of voting, the political character of his vote. It was thought that . by this absolute and compulsory secrecy in the method of voting, bribery and intimidation could best be prevented, and the act before.its is overloaded with provisions tending to that single purpose. It is apparent then that, under our present system, the voter has something more to do than to plainly designate the person for whom he would vote. He must designate it in the manner prescribed by the statute. And it is further- apparent that, 'in order to carry out the leading purpose of the statute, the method of voting becomes of the utmost importance.

Itl construing this statute then, and in seeking an answer to the question presented by this appeal, we- are not at liberty to overlook the well-known object for which it was enacted, nor could we if we would, for iso plain a purpose and intent constantly thrusts itself before us.

The first provision of the statute bearing .upon the question is found in section 81, entitled Form of General Ballot.” That section, among many other things, in substance, requires that all ballots shall contain- on the left' of the name of every candidate printed thereon, á blank space one-quarter of -an inch wide, inclosed by heavier- dark lines, which shall be called the “ voting space .” Such section further ■ provides -that each ballot shall be. so printed as to give each elector a clear opportunity to designate by a “ cross X mark,” in .the blank space therein designated as the “ voting space ” on the- left of and before the name of each candidate, his choice of particular candidates. Following this provision and in section 105, which is entitled Preparation of Ballots by Electors,” it is, among other things, provided' as follows: It shall not be lawful to make any mark upon the official ballot, other than the cross X mark used for the purpose of voting, with a pencil having black lead, and that only in the-circles or.in the voting spaces to the'left of the names candidates..' * * *” "

- In -these two provisions a voting space ” inclosed within dark lines is first created on the left of each candidate’s name, and, secondly, it is declared .to be unlawful to place such cross X mark upon the ballot in any other place than the circle. at the head of 'eachcolumn, or in the “ voting space” to'-the left of each candidate.

’ Then follows, in the same section 105, subdivision 2, the express direction that: “ If the elector desires to vote a split ticket, that is, for candidates of different parties, he must not make a cross X mark in the circle above the name of any party, but shall make a cross X mark in the voting space before the name of each candidate for whom he desires to vote,” etc.

Here we have clear and explicit directions that any elector who> desires to vote for candidates of different parties must make the-cross X mark within the voting space, and that it is wilamful for him to put it outside of such space. And this plain direction of the statute would seem to be a plain answer to the question in the form first above stated, were it no.t for a provision that is contained in section 81, and which immediately follows the provision above quoted from such section. , The provision is as follows: The ballot shall be printed on the same leaf with a stub, and separated therefrom by a perforated line.” On the stub shall be printed instructions as follows : “ This ballot should be marked in one of two ways, with a pencil h&ving black lead. To vote a straight ticket make a cross X mark within the circle above one of the party columns. To vote a. split ticket, that is, for candidates of different parties, the voter-should make a cross X mark before the name of each candidate for whom he votes,” etc.

It is claimed by the relator that, because these instructions do not in express terms require the voter to make, the cross X mark in the voting space ” before the name of the candidate, they are inconsistent with the voting provisions above referred to,- and that, inasmuch as they are instructions placed before the voter at the time he is called upon to prepare his ballot, they indicate an intent on the part of the Legislature to permit a split ticket to be voted by placing the cross X mark anywhere before the candidate’s name. If the method of voting laid down in these instructions was in fact inconsistent with that provided for by the other requirements of that section and of section 105, above referred to, I should be inclined to think that the method stated in the instructions was the one which the statute intended. But the provisions aré not inconsistent. The cross X mark can be made before the name ” and also be made in the “ voting space.” The law itself is explicit that it must be máde within the voting space. The - directions do not say that it need not. On that subject they are silent but not contradictory:

The omission to explicitly direct, in the instructions, that the mark must be within the voting space, is, I confess', calculated to mislead a voter' who did not know the law itself. But is such fact a sufficient warrant for the conclusion that the explicit requirement in section 81, and' the express declaration in subdivision 2 of section 105, that it should be an unlawful act. to put the mark anywhere except inside of the “ voting space,” were not intended to be effectual ? Are we to conclude that the method of voting, by those provisions required, was not the real method which the act intended, but that the “ voting space ” was a mere useless contrivance without purpose and to which the voter was to pay no attention whatever ?

I appreciate the injustice that may sometimes, and, perhaps^ frequently, occur from the fact that the instructions do not fully and explicitly explain the method of voting which the act requires,! but I cannot believe that, in order to correct such an omission, wé are. authorized to infer that no more of the plain and elaborate method laid down in the law was intended to be operative than was repéated in the instructions in question.

Chapter 810 of the Laws of 1895, amending the-“Election Law,” provides for a blank space on the left of each candidate on the ballot (§ 81), and also that the cross X mark shall be placed therein. (§.104.) And such law, section 81, also provides that the instructions printed on the stub shall direct the voter desiring to vote for an individual candidate to make a cross X mark “ in the space before his name.” ' It is urged on the part of the relator that the change made in the instructions provided for in the act of 1896, from those contained in the act of 1895, viz., leaving out the direction to make the mark in the space, indicates a change of intention on the part of the Legislature, and that upon the repeal of that law by the act of 1896 the intent to require the mark to be made within the space was abandoned. But if such- was the intent — if the method of voting in this respect was to be changed — why provide in the act of 1896 for the.printing of ballots with the blank space upon them; why provide,, in section 105, that the voter shall, in voting for individual . candidates,, make the mark within the voting space; and why provide, in that section, that it shall be unlawful for him to do otherwise? The act of 1896 was not an amendment of any act. It repealed all existing acts, and by itself creates an entire system of voting; new in some particulars, but following, in most of them, the provisions of former acts, In the face of the fact that the act itself carefully and explicitly provides for the same method of voting, I cannot infer any intent to change that method because of the change in the phraseology of the instructions. Plainly that change is owing to either an' oversight in drafting the act, or else the legislators thought that, in the phrase in which it is, its meaning could not be misunderstood. The elector is told that, in voting a straight ticket, he must put the mark in the circle at its head. In voting for an individual candidate .he must put it before his name. The voting space before each name is plain, and why a voter would not naturally conclude that,- like the circle, it was designed to receive the mark, is not very apparent to me. True, the mistake would not have- been so likely to occur if the instructions had been more specific, but the legislators may very well have supposed they were specific-enough;' and I cannot conceive that they intended to nullify all the specific provisions of the act and change the method of voting therein provided by this omission in the instructions.

I must conclude, therefore, that the act, both in terms and in intent, requires the voter to place the mark within the voting space, and that any other method of voting for an individual candidate is unlawful.

It is urged, however, that, even if such a method of voting is unlawful, the ballot is not to be rejected on that account. That the provision is to be considered as directory, not mandatory ; and this position is taken because, in specifying the ballots that are to be treated as void, the law does not specially name one on which the mark is placed outside of the voting space.

It is difficult to understand why the provision is not mandatory, since the act declares that any other method shall be unlawful (23 Am. & Eng. Ency. of Law, 453), but let us examine what kind of ballots are by the act itself declared to be void.

By section 105, immediately after the provision that “it shalbnot be lawful to make any mark upon the official ballot other than the cross X mark used for the purpose of voting,” etc., it is further provided: “Any ballot upon which there shall be found any mark, other .than the cross X mark used for the purpose of voting, or a name or names written thereon otherwise than as heretofore provided * * * shall be wholly void and no vote thereon shall be counted.” Here is a plain provision that any ballot on which any mark shall be found shall be void, unless.it is a “cross X mark used for the purpose of voting.” Evidently it was not intended by the ' phrase “ cross X mark used for the purpose of voting ” to except in all cases a mark of that particular shape. It was not intended that a mark identical with thát in character and form could be placed anywhere on a ballot at the will of a voter. The exemption extends only to that particular mark, and to that mark only when “ used for the purpose of voting.” How, when can it fairly be said to be so used ? Only, it seems to me, when it is used in the manner permitted by the law. Suppose the voter places it across the first name of the candidate or across his last name, or between the two names or before both, and claims that he did so for the purpose of voting, nevertheless he has not used it for that purpose. There is but one way by which it can be used, under the statute, for the purpose of voting, and that is- by being placed within the “ voting space.” If found without that space it has no such expression and in no fair sense can be said to be used for voting. It cannot be fairly said that, within the meaning of a statute which requires a voter to place the cross X mark within the space in order to vote, such a mark has been “ used for the purpose of voting ” when placed anywhere else. A ballot, then, which has a cross X mark upon it that is neither in the eircle nor in the voting space has a mark upon it that renders it void. Such a mark is not the one excepted by the statute. It is not one used for the purpose of voting.

If I am correct in this construction of the act, there can be no doubt but that the ballots in question were void. They were not only not voted in the manner required by the statute, but were also of the character of those which are by the statute declared to be void.

■ It is vigorously urged that this construction of the.statute tends to bring the whole of it into contempt; tliat it puts it in the position of requiring from the elector a certain method of voting, while it instructs him to follow a different one. As suggested above, the difficulty with the argument is that the statute does not instruct him to follow a different one. The instructions do not necessarily . conflict with the provisions of the law,- and hence the rule in Hoey v. Gilroy (129 N. Y. 132) and kindred cases to which our attention has been called, does not apply. True, the statute would be in better form and more likely to prevent error had the instructions been more explicit; but we are not at liberty to change, by construction, its explicit provisions and manifest purpose in order to relieve it from that criticism. It cannot be doubted but that if the voter may place the cross X mark outside of the voting space, one additional means of enabling him to mark and exhibit the ballot cast by him is added to the many that now exist. The earnest purpose of the statute to enforce secrecy in his voting' is to ■ that extent obstructed, and I am the better satisfied with the.construction above given when I consider that it is the one best calculated to advance the object which the statute had in view. We are reminded by the case of People ex rel. Niohols v. Board, etc. (129 N". Y. 395), that no matter how harshly or unjustly it may operate in the particular case at bar, we are not at liberty to adopt a construction of this statute which will render it more easy for the voter to reveal that which it is the' plain purpose of the statute to compel him to conceal.

Conceding that the instructions to the voter are obscure, that they leave us in doubt as to just what method of voting is required, we must refer to other parts of the statute and read them altogether to ascertain its intent. (People ex rel. Onondaga Savings Bank v. Butler, 147 N. Y. 164.) Upon reading the whole statute together, and also having in view its well-known purpose, above referred to, I have no doubt whatever that the Legislature intended to require that the mark be placed within the voting space, and that no elector’s vote should be counted who refused or neglected to adopt that method. Entertaining these views, I am forced to the conclusion that the ballots 'in question were properly rejected by the inspectors, and that the order appealed from was improperly made.

All concurred, except Laudoe, J., dissenting.

Order appealed from reversed, with ten .dollars costs and disbursements.  