Summary
In Matter of Rabbitt v. Garand (89 App. Div. 119) a proceeding had been instituted to review the action or neglect of the board of inspectors of primary elections in an election district upon allegations of fraud and misconduct of the inspectors, who appeared upon the return of the order to show cause, raised a preliminary objection to the jurisdiction of the court and also filed an answer.
Summary of this case from Matter of HinesOpinion
December, 1903.
Peter A. Delaney, for the appellants.
Walter H. Wertime and Judson S. Landon, for the respondents.
The appellants having withdrawn their answer and having expressed their intention not to question the merits of the petitioners' application, but to stand upon their preliminary objections to jurisdiction, the only question we need to discuss is as to the power of the justice to make the order appealed from.
Section 11 of the Primary Election Law (Laws of 1899, chap. 473), under which this proceeding was commenced, so far as is pertinent to this inquiry, is as follows: "Any action or neglect * * * of any inspector of primary election, or of any public officer or board with regard to the right of any person to participate in a primary election * * * or with regard to any right given to, or duty prescribed for any elector * * * officer or board, by this act, shall be reviewable by the appropriate remedy of mandamus or certiorari, as the case may require. In addition thereto, the Supreme Court, or any justice thereof within the judicial district, or any county judge within his county, shall have summary jurisdiction, upon complaint of any citizen, to review such action or neglect * * * and shall make such decision and order as, under all the facts and circumstances of the case, justice may require."
The inspectors of the Democratic party in this district compose a board of primary election inspectors and are public officers. Each is required, before entering upon his duties, to make and subscribe an oath to faithfully perform his duties as such inspector. (Id. § 5.)
The statute with reference to the canvass of votes provides: "As soon as the polls at any official primary election shall close, the board of primary inspectors shall forthwith publicly canvass and ascertain the result thereof, and they shall not adjourn or postpone the canvass until it shall be fully completed. * * * The room in which such canvass is made shall be clearly lighted, and such canvass shall be made in plain view of the public. It shall not be lawful for any person or persons, during the canvass, to close, or cause to be closed, the main entrance to the room in which such canvass is conducted, in such manner as to prevent ingress or egress thereby." (Id. § 8.) Section 8 of the statute also contains specific directions as to the manner of canvassing the votes and returning the result thereof. Quotations from the statute are not essential to show that it is the duty of the inspectors to publicly canvass the votes cast by duly enrolled voters of the party holding the primary and to faithfully and honestly count, and to return a statement of the result of, such votes, and not as this record plainly shows to include in such count and return a large number of ballots not voted at all, but corruptly "stuffed" in the box or added to the returns for the purpose of fraudulently changing the result and baffling the will of the majority.
The purpose of the inspectors in ejecting the watchers and all interested in the success of the opposition ticket from the polling place is apparent and was a clear violation of the law. When this was supplemented, not by a canvass and return by the inspectors of the votes cast alone, but of a large number of fraudulent votes corruptly added to change the result, a case is presented where quick and summary justice only is adequate to provide a remedy.
If the acts of these inspectors complained of and proven here do not present a case where an "action or neglect" of an inspector of primary election or of a public officer or board with regard to a right given to any elector and with regard to a duty prescribed for an officer or board by the law, may be summarily reviewed by the court or a justice thereof and be remedied by such an order as justice requires, it would be difficult to conceive an action or neglect, under the law, which is. It was the duty of the inspectors to make a true and honest statement of the votes cast, and it was the right of every elector to have that duty faithfully performed.
After the answer of the appellants was withdrawn and their counsel made the statements to the justice which he did on withdrawing it, they stood before him in the position of practically conceding that all the allegations of the petition were true and of claiming that notwithstanding the fraud upon the ballot box there charged which concerned every elector who voted, and the public at large as well as the respondents, the justice was powerless to act or to afford any relief and that the only remedy of the respondents was by applying for a writ of quo warranto to try the title to the office.
There might be some plausibility in that position if the appellants, who now hold fraudulent certificates of election as committeemen, had in fact entered into possession of the offices for which they were candidates, yet when the justice under the summary power given him by the law, nullified the certificates before they were effective to give them such possession, the contention of the appellants in this respect has nothing in it to commend it to my judgment.
In saying this I do not overlook the general rules that election returns are presumptive evidence of their contents and that the holder of a certificate of election to an office is prima facie entitled to the office, yet when such a holder comes into court, before he gets possession of the office, and practically admits his title thereto to be fraudulent, if the court has jurisdiction of the subject-matter, he at least cannot complain if the court so declares and directs the certificate to issue to the one lawfully entitled thereto.
I think the justice before whom this case was heard had jurisdiction under the facts appearing here of the subject-matter, and by standing on their objection to the jurisdiction of the justice the appellants should not now be heard on the merits.
The Legislature had the power to provide a summary remedy to review the action or neglect of inspectors and boards under the Primary Election Law, and the facts and circumstances appearing here were such that justice required the making of the order appealed from.
It should be affirmed, with costs.
All concurred.
Order affirmed, with ten dollars costs and disbursements.