Opinion
December Term, 1899.
L.W. Baxter, for the appellant.
E.A. Dox and G.M. Palmer, for the respondents.
The main question here is whether the alternative writ states facts sufficient to warrant its issuing. It states that, in counting the ballots, each person engaged in counting took from the whole number of ballots a certain number and counted the same and declared the result both as to the straight and split tickets and what he regarded as defective and void ballots without passing the split tickets or any of the tickets from one to the other for verification. This was not in accordance with the Election Law. That provides (Laws of 1896, chap. 909, § 110, subd. 3) that the straight ballots shall be separated from the split ballots and counted, and the number for each candidate entered opposite his name on each tally sheet; that then the chairman of the board shall take the split ballots separately and announce the vote for each candidate on each such ballot in the order of the offices printed thereon, and each poll clerk shall make an accurate tally of the same, and as the votes on each split ballot are counted, such ballots shall be passed to the other inspectors for verification.
But it is said that there is in the alternative writ no allegation of injury to the relator, or that any of the ballots rejected as void and not counted were not, in fact, void, or should have been counted for the relator. The relator was entitled to have such count as the law required to enable him to ascertain whether or not the count was correct. This he needed in order that he may, if necessary, be able to specify wherein there is error to his injury. He alleges, generally, that a recount is necessary to protect his rights. The fact that so large a number was rejected is, in itself, in view of the small majority as declared, a circumstance that might well induce a candidate to ask for investigation. It should not, I think, be held that, under the allegations of the alternative writ, the relator was not entitled to relief.
The further question arises whether the motion of the relator for a peremptory writ was properly denied.
In the return of the board to the alternative writ it is practically admitted that the provisions of the statute as to the counting of split tickets were not followed. The straight were not separated from the split and first counted, and the chairman did not take the split ballots separately and announce the vote. There were 297 split ballots out of a total vote of 529. It is hardly necessary to say that the affidavits used at the Special Term cannot be considered upon the question of the character and invalidity of the rejected ballots.
Under section 114 of the Election Law, a writ of mandamus may be issued to determine whether any ballot and the votes thereon, which has been rejected by the inspectors as void, shall be counted. It may be that this is only applicable to cases where the void ballots have been indorsed and returned in a sealed envelope with the statement of the canvass, which in the present case does not seem to have been done. The defendants do not claim that it was done. If that provision does not apply at the present stage of this case, then, under the general rule that mandamus will lie to compel the performance of an official duty, clearly prescribed by law on the part of a public officer or board ( People ex rel. Emerson v. Aldermen, 65 Hun, 302), the relator is entitled to relief. When the defendants make a canvass and return as provided by law, the relator then will be in a position to assert such rights as he may have in regard to rejected ballots. The statutory provision for a mandamus evidently contemplates that an interested party shall have all reasonable opportunity to investigate the character of ballots rejected as defective and void.
The motion of the relator for a peremptory writ should have been granted.
All concurred.
Order reversed, with ten dollars costs and disbursements, and peremptory mandamus for a recount granted, returnable at Special Term.