
    In the Matter of the Application of Warren Chipp Tamney, Respondent, for a Writ of Mandamus against William H. Atkins and Others, Justices of the Peace of the Town of New Paltz, Ulster County, New York, and Others, Defendants, Impleaded with Eugene Van Wagenen, Town Clerk of Said Town, and Others, Appellants.
    Third Department,
    May 8, 1912.
    Election Law, section 381, construed — mandamus to examine rejected ballots — validity of ballots on propositions under Liquor Tax Law — effect of double marking as to one proposition.
    The words “ within twenty days thereafter,” as used in section 381 of the Election Law, refer to the application for relief and not to the actual obtaining and issuing of a writ of mandamus within that time.
    Where the application has been made in the form of an order to show cause within the prescribed time, it does not matter whether or not the hearing and decision as to the issuing of the mandamus is had within that time. ' .
    The provision of section 381 of the Election Law, that an application for the production of ballots rejected by inspectors as void may be made by a “candidate voted for at such election,” permits a judicial investigation of void ballots which have been rejected upon propositions voted upon by electors, as well as of ballots east for candidates for office.
    Hence, the provisions of the Election Law apply to propositions submitted under the Liquor Tax Law, and where ballots for the submission of the four propositions under said law are printed in proper form but the voters have voted both “yes” and “no” upon the first three propositions by making cross-marks in both squares, but have voted properly upon the fourth proposition, the ballots are not rendered void as to the fourth proposition because the voters did not properly vote upon the other propositions and nullified their votes on such other propositions by making too many crosses.
    Appeal by the defendant, Eugene Van Wagenen, town clerk, etc., and others, from an order of the Supreme Court, made at the Rensselaer Special Term and entered in the office of the clerk of the county of Ulster on the 23d day of December, 1911, directing the counting of certain ballots upon the question of local option rejected by the board of inspectors as void.
    
      
      John J. Linson, for the appellants.
    
      Augustus H. Van Buren, for the respondent.
   Houghton, J.:

At the general town meeting of 1911 the electors of the town of New Paltz, Ulster county, upon a proper petition, voted upon the four propositions with respect to the sale of liquor in that town, as permitted by section 13 of the Liquor Tax Law (Consol. Laws, chap. 34 [Laws of 1909, chap. 39], as amd. by Laws of 1910, chap. 485).

The town contains two election districts and the inspectors of election in each of the districts determined that certain of the ballots were void, and refused to count them- upon any of the propositions submitted.

The vote upon the' first two propositions, relating to saloon licenses and to the sale of liquor not to be drunk upon the premises, was in the negative by a' substantial majority, and the third • proposition, as to sale by pharmacists upon physician’s prescription, was in the affirmative by a majority of one hundred and two. The vote upon the fourth proposition, as to whether there should be a sale of liquor by hotelkeepers, was declared to be a tie, which, under the provisions of the section above referred to, prevented the issuing of a liquor tax certificate for the sale of liquors in such town.

No question is raised as to the vote upon the first' three propositions. As to the fourth proposition the respondent, who owns' a hotel in the town and who will be seriously damaged if the sale of liquor by him is prohibited, within twenty days after such election, by an order to show cause, instituted proceedings under section 381 of the Election- Law (Consol. Laws, chap. 11; Laws of 1909, chap. 22) for the issuance of a writ of mandamus requiring the production of the ballots rejected by the inspectors as void, for the purpose of determining whether they were properly rejected or not, and to compel the counting of the same if it should be decided they were valid.

Upon the return of the order to show cause the appellants raised two preliminary objections, one, that tb,e court had no power to entertain the proceeding because the hearing for.the mandamus was not had within twenty days succeeding the ■ election, and the other that section 381 of the Election Law conferred no power upon the court to make a judicial investigation to determine the validity of rejected ballots cast upon a question or proposition submitted to the voters, but that such jurisdiction related only to ballots cast for candidates for office.

These preliminary objections were overruled, and the ballots rejected as void being produced the court determined that four of them were valid ballots and lawful votes on the fourth question submitted, and should be counted, three in the affirmative and one in the negative, and directed the boards of inspectors to reconvene for that purpose.

The result of such recount would be that the proposition to allow the sale of liquor by hotelkeepers was carried in the affirmative by a majority of two.

We think the learned Special Term was correct in overruling the preliminary objections raised. So far as material to the question presented, section 381 of the Election Law prescribes that if any certified original statement of the result of the canvass in an election district shall show that any of the ballots therein were rejected by the inspectors as void a mandamus may, upon the application of any candidate voted for at such election in such district, within twenty days thereafter, issue • out of the Supreme Court to the inspectors of election making such statement, requiring a recount of the votes on such ballots.

The town meeting or election ” was held on the seventh day of November. The order to show cause why a mandamus should not issue was granted on the twenty-fifth day of November, returnable on the second day of December. The obtaining of the order to show cause was within twenty days succeeding the election. This order to show cause was granted upon proper papers setting forth proper facts for the granting of a mandamus. The words in the section, within twenty days thereafter,” refer to the application for relief and not to the actual obtaining and issuing of the writ within that time. The application having been made in the form of an order to show cause within the prescribed time, it did not matter whether the hearing and decision as to the issuing of the mandamus was had within that time or not. If the rule were otherwise a party-might be deprived of his remedy if argument for the man-damns should take place.within the twenty days and the court should not determine that it was proper for it to issue until after that time- had expired.

Notwithstanding the peculiar language of section 381 prescribing that an application may be made by a “candidate voted for at such election,” we are of opinion that the section permits a judicial investigation of void ballots which have been rejected upon propositions voted upon by electors, as well as of ballots cast for candidates for office.

Section 13 of the Liquor Tax Law makes it lawful, upon proper petition, for the electors of a town to vote upon four propositions with respect to the sale of liquor in such town, and section 316 of the Election Law (as amd. by Laws of 1911, chap. 649) makes it the duty of the election officials to providé specified kinds of ballot boxes, and amongst its provisions is the following: “If proposed constitutional amendments or other propositions or questions may be lawfully voted upon thereat, there shall be a separate ballot box at each polling place for the reception of ballots upon such amendments or propositions or questions, which box shall be conspicuously-marked ‘box for questions submitted.’ ” Section 332 provides that the ballots to be provided for voting upon such questions “shall comply wfith the requirements of official ballots for candidates for public office in. so far as such requirements are applicable thereto; ” and section 420 declares that with respect to voting machines the word “ ballot ” includes votes -cast on questions submitted to voters upon which they may vote “ Tes ” or “No.”

Section 313 of the Election Law provides that if ballots are voted upon any constitutional amendment, proposition or question, a similar return (to that made upon votes for candidates) of the ballots and votes cast thereon shall be made by the inspectors.

The questions were lawfully voted upon because the law specifically authorized their submission to the electors of the town, and the votes were cast and guarded and counted and the return made under the provisions of the Election Law. It would appear to have been the intention of the Legislature by the enactment of section 381 of the Election Law to authorize a summary judicial review of ballots rejected as void and not counted (including ballots counted under protest) upon questions and propositions legally voted upon as well as of like ballots cast for candidates.

The appellants invoke the Election Law to declare the invalidity of the ballots in question and to sustain the decision of the board of inspectors that they are void. If the Election Law does not apply then then validity or invalidity cannot be gauged by its provisions.

This court assumed, without the question being raised, that the Election Law did apply to propositions submitted under the Liquor Tax Law, in People ex rel. Henness v. Douglass (142 App. Div. 224) and in another phase of the same case reported in 143 Appellate Division, 750.

The question was raised but not decided, because the proceeding was not begun within twenty days after the election, in People ex rel. May v. Strang (137 App. Div. 848). It was expressly held in People ex rel. Decker v. Parmelee (22 Misc. Rep. 380) that section 114 of chapter 909 of the Laws of 1896, from which the present section numbered 381 is derived, authorized the court to determine whether ballots cast upon such propositions were properly declared by the inspectors to be void. And in People ex rel. Bell v. Board of Canvassers (65 Misc. Rep. 223) the proceeding was Entertained and decided without question.

Authority, as well as the reading of the provisions of law referred to, leads to the conclusion that the court properly held it had jurisdiction to determine whether or not the ballots which were rejected as void were properly rejected or not.

It remains to be considered whether the learned Special Term was correct in directing the inspectors to count the four rejected ballots. These ballots had printed upon them, all four of the excise questions, numbered respectively one, two, three and four. The first question related to the selling of liquor to be drunk on the premises; the second to the selling of liquor not to be drunk on the premises; the third to the selling of liquor by a pharmacist on physician’s prescription; the fourth to the selling of liquor by hotelkeepers only. The several propositions were separated by a heavy black line, and in front of each proposition and under'each other were the words “yes” and “no” in large type, and opposite each word was a square within which the cross mark for voting is required to he made. If a voter accurately voted yes or no upon all the propositions he would, therefore, make four ballot cross marks on the ballot. Two of the ballots in dispute contained five cross marks, in one of which the voter voted both “yes.” and “no” upon the second proposition, and in the other of which he voted hoth “ yes ” and “ no ” upon the third proposition. One of the ballots contains four cross marks, but the voter voted both “ yes ” and “ no ” upon the first proposition and not at all upon the second, and “yes ” upon the third. The other ballot contained six cross marks, the voter having voted both “yes” and “no” upon both the second and third propositions. By all four of the ballots the voter voted properly on the fourth proposition, three of the cross marks being opposite “yes” and one being opposite “no.”

The learned court at Special Term held that the ballots were not rendered void as to the fourth proposition because the voter did not properly vote ■ upon the other propositions and nullified his vote on such other propositions by making too many- crosses, and that there being no other marks save a cross mark in the voting spaces on the ballots, a superfluous number of crosses with respect to the other propositions did not destroy the vote upon the fourth proposition the cross mark as to which was correctly made.

• We think this holding was correct. The law required the submission of all four of the excise questions upon the one ballot. The questions themselves, however, are separate and distinct. The voter could vote upon all four of them if he chose, or upon any one of them and not vote at all upon the others. Rule 6 of section 358 of the Election Law (as amd. by Laws of 1911, chap. 296) declares that in the case of a question submitted the voter shall make a cross mark in the blank .square space on the right of and after the answer, “Yes” or “No,” which he desires to give on each such question, submitted; but the law nowhere declares that in case he shall make a cross mark in the square opposite both “Yes” and “No” upon any one question it shall nullify the entire ballot or destroy Ms vote upon any other question as to which he may make a proper cross mark.

The inspectors and the court below properly held that marks outside the voting spaces and erasures and the like rendered the ballot void. Nothing of that sort, however, appears on the ballots m controversy. The only trouble with any of them is that the voter nullified his vote upon one or more of the questions by making a clean perfect cross mark in the voting spaces as to both “Yes” and “No” thereon. Upon the question as to sellmg liquor by hotelkeepers, however, the vote' in each instance was properly marked.

The Election Law specifically provides that a surplusage .of cross marks withm the voting spaces upon a ballot shall not m certam instances vitiate the ballot. Rule 2 of section 368 (as amd. by Laws of 1911, chap. 649) directs that where a voting mark shall be made m a chele above a ticket and marks shall have also been made in the voting squares before the names of candidates on that ticket the marks in the squares shall be treated as surplusage and the vote counted as though no mark appeared anywhere except in the circle. Rule 6 of that section (as amd. supra) provides that where a voting mark shall be made in more than one circle the vote shall be counted for those candidates for office agamst whom no candidate is named on the other ticket. Where a cross mark is made m the circle and the voter also makes cross marks before each of the names of opposing candidates running for the same office the ballot is not rendered wholly void but simply cannot be counted for either of the candidates for that particular office. (Election Law, § 368, rule 7, as amd. by Laws of 1911, chap. 649; People ex rel. Feeny v. Board of Canvassers, 156 N. Y. 36.)

If this latter rule be applicable to ballots upon which questions are submitted to voters as well as to ballots cast for candidates there can be no question as to the validity of all four of the ballots in controversy. In the case of a ballot for candidates the voter nullifies his vote as to two opposmg candidates by makmg a cross mark before the names of each and thereby votmg for neither; but because he makes a proper cross mark in the circle the law commands that his vote shall be counted for all the other candidates on that ticket. In the case of a .ballot upon questions submitted the voter nullifies his choice upon one of the questions by voting both “Yes ” and “No;” but by making a proper cross mark in the voting square upon the other questions he votes either in the affirmative or in the negative upon that particular proposition.

There being no command that the ballots shall be nullified by such double voting upon any one question, we think that the double marking simply nullifies the vote as to the particular question so marked, and that if the ballot be otherwise correct it must be counted either in the affirmative or negative for the questions which are properly marked. In the case of candidates the voter merely spoils his vote as to the candidates which are doubly marked, but his mark in the circle indicates his intention to vote for the other candidates not so marked. In the case of submitted questions the double marking spoils his vote as to the question doubly marked, but as to the other questions his marks being correct his intention is clearly indicated.

If the Legislature intended to provide that the double marking of any question should vitiate, the whole ballot and render void all votes on the other questions submitted, it could easily have so enacted. In the absence of any such provision we think it may fairly be inferred that it assumed that the rules which.it carefully prescribed with respect to ballots cast for candidates should be also applicable to ballots cast upon questions submitted to the voters. The conclusion to the assumption is that surplusage of voting marks as to any one question made in the voting squares only nullifies the particular question involved and does not render the entire ballot void.

If this view be correct it follows that the order should be affirmed, with ten dollars costs and disbursements.

All concurred; Kellogg, J., in memorandum.

Kellogg, J. (concurring):

Rule 9 of section 368 of the Election Law (Consol. Laws, chap. 17 [Laws of 1909, chap. 22], as amd. by Laws of 1911, chap. 649) declares what ballots are void, and that a void ballot cannot be counted for any candidate thereon. The rule does not make a ballot void because a cross mark made for the purpose of voting is put in too few or too many of the circles or voting spaces.

Rule 7 of the section (as amd. supra) provides that if the voter marks more names than there are persons to be elected, “or if for any other reason it is impossible to determine the elector’s choice of a candidate for an office to be filled, his vote shall not be counted for such office but shall be returned as a blank vote for such office.”

Beading rules 7 and 9 with rule 6,1 think it is apparent that, if there is nothing irregular about the ballot but the manner of making a proper cross mark in the circles or voting spaces the ballot is not void, but it cannot be counted as to any office or position as to which the voter’s intent cannot be ascertained. but the ballot may be counted where the voter’s choice can be determined.

It follows that the four ballots were properly counted.

Order affirmed, with ten dollars costs and disbursements.  