Opinion
December Term, 1897.
Horace E. Deming, for the appellants.
Asa Bird Gardiner, for the respondents.
In the proceeding designated as No. 1 petitions were presented to the Supreme Court asking that the board of county and city canvassers of the city and county of New York be required to summon the several boards of inspectors of the seventh, eighth, tenth, fourteenth, seventeeth, eighteenth, nineteenth and twentieth election districts of the nineteenth Assembly district to appear before the board of city and county canvassers to make such corrections in the original statements of the voters polled as the facts of the case required, and to cause their canvass of the votes in said several election districts to be correctly stated.
In the proceeding designated No. 2 petitions were presented asking that the inspectors of the several election districts before referred to be required to reconvene, and that the said inspectors thereupon make a correct statement and return of the canvass of votes in their said election districts from the tally sheets kept by the poll clerks, in accordance with section 84 of the Election Law (Laws of 1896, chap. 909), of the votes for Member of Assembly and member of the board of aldermen in said Assembly district, and that the board of county and city canvassers of the city and county of New York canvass from such statement and return the votes for said offices in said election districts at said election. These applications were denied, and from the order entered upon such applications the petitioners appeal.
The questions presented on both applications are based upon substantially the same facts. The relief asked in the proceeding first specified is to require the board of city and county canvassers to require the inspectors of election to appear before them to correct the clerical mistakes that appear upon the face of the returns; and in the second, to require the inspectors upon such appearance before the board of city and county canvassers to make the original statement of the votes made, as required by section 111 of the Election Law, conform to the tally sheet kept by the election officers in pursuance of section 84 of the Election Law; and the question presented upon these two applications, involving as it does a construction of the Election Law, and as to what relief, if any, the petitioners were entitled to, may properly be discussed together. The facts are substantially undisputed. It appears that at the general election held on November 2, 1897, the petitioner Perez M. Stewart was a candidate for the office of Member of Assembly, and that the petitioner Howard P. Okie was a candidate for the office of member of the board of aldermen from the nineteenth Assembly district; and that Solomon C. Weill was also a candidate for the office of Member of Assembly, and John S. Geagan was also a candidate for the office of member of the board of aldermen. On the tally sheets kept by the election officers, as prescribed by the Election Law, it appeared that, in the seventh election district of the nineteenth Assembly district, Perez M. Stewart received for the office of Member of Assembly 50 votes; in the eighth election district, 100 votes; in the fourteenth election district, 128 votes; in the seventeenth election district, 47 votes; in the eighteenth election district, 85 votes; in the nineteenth election district, 133 votes, and in the twentieth election district, 156 votes. It further appears by said tally sheet that Solomon C. Weill, the Democratic candidate for the office of Member of Assembly, received in the tenth election district of the said Assembly district 135 votes; in the nineteenth election district, 69 votes, and in the twentieth election district, 86 votes.
In the official statement of the votes for the office of Member of Assembly, signed by the inspectors of election, it appeared that the vote for Stewart in the seventh election district was 46 votes instead of 50 votes, as appeared by the tally sheet; in the eighth election district, 12 votes, instead of 100 votes, as appeared by said tally sheet; in the fourteenth election district, 112 votes, instead of 126 votes, as appeared by said tally sheet; in the seventeenth election district, 42 votes, instead of 47, as appeared by said tally sheet; in the eighteenth election district, 30 votes, instead of 85 votes, as appeared by said tally sheet; in the nineteenth election district, 130 votes, instead of 133 votes, as appeared by said tally sheet, and in the twentieth election district, 151 votes, instead of 156, as appeared by said tally sheet; and it appeared that the said Solomon C. Weill received in the tenth election district 151 votes, instead of 135, as appeared by the said tally sheet; in the nineteenth election district, 72 votes, instead of 69, as appeared by said tally sheet, and in the twentieth election district, 91 votes, instead of 86, as appeared by said tally sheet. It also appears that the said Howard C. Okie, according to the said tally sheets, received in the seventh election district 46 votes for the office of member of the board of aldermen; in the eighth election district, 101 votes; in the fourteenth election district, 116 votes; in the seventeenth election district, 43 votes; in the twentieth election district, 160 votes; in the twenty-first election district, 192 votes; in the twenty-seventh election district, 194 votes; in the twenty-eighth election district, 174 votes; but that by the original statement of the canvass of the votes as filed, the inspectors of election certified that the said Okie received in the seventh election district, 42 votes, instead of 46 votes, as appeared by the said tally sheet; in the eighth election district, 12 votes, instead of 101 votes, as appeared by the said tally sheet; in the fourteenth election district, 100 votes, instead of 116, as appeared by the said tally sheet; in the seventeenth election district, 38 votes, instead of 43, as appeared by the said tally sheet; in the twentieth election district, 155 votes, instead of 160, as appeared by the said tally sheet; in the twenty-first election district, 190 votes, instead of 192, as appeared by the said tally sheet; in the twenty-seventh election district, 190 votes, instead of 194, as appeared by the said tally sheet; and in the twenty-eighth, 170 votes, instead of 174, as appeared by said tally sheet.
These facts are not denied; and it appears that, by the action of the inspectors in failing to return the vote cast for the candidates for these offices, as stated upon the tally sheets, the result of the canvass will be to give Weill and Geagan the offices to which, according to the vote cast, as shown upon the tally sheets, these petitioners were elected.
The question presented is whether, under the law of this State, any relief can be granted to the petitioners under these circumstances, and whether the court has the power to require these officers to perform their duty, to make a correct statement of the canvass of the vote. If this decision appealed from is correct, it would seem that voting is a useless formality, as it depended upon the will of the inspectors of election as to who should hold the offices, and not upon the vote of the People. The remedy by quo warranto, or an appeal to the Assembly for the office of Assemblyman, from the delays incident to such proceedings, would, in the case of an office for such a short term, prevent the person elected from representing the People for the greater portion of the term for which he was elected. The election laws of this State have, within the last few years, undergone the most extensive revision. The question has deeply excited the public interest. As was said by the Court of Appeals, in the case of People ex rel. Nichols v. Bd. Canvassers ( 129 N.Y. 402), in speaking of the Election Law of 1890 (Chap. 262), "No statute has been passed, in recent years at least, that received such full consideration, or after so much deliberation and careful scrutiny on the part of the executive and the Legislature. It was so apparent to everyone that it worked such radical changes in the conduct of elections and in the manner of voting, from the regulations previously existing, that its final passage was secured only after the most exhaustive and careful scrutiny on the part of the lawmakers and the public." And this is more pertinent as applied to the General Election Law of 1896, passed as the result of the experience under the law of 1890. It was passed for the purpose of making more effective the safeguards against the abuse of the elective franchise, and rendering more certain the proper and accurate canvass of the votes and the declaration of the result of an election. It can hardly be thought possible that it was the intention of the Legislature to give to inspectors of election the power by a simple certificate to determine the election, regardless of the votes actually cast, and provide no remedy for a mistake or false statement by the inspectors of the votes as actually polled, whether such mistake was intentional or unintentional.
The learned judge who heard this application at Special Term denied it on the grounds: First, that an issue of fact was raised as to the correctness of the return, and, as he was prohibited by the Code from passing upon a disputed question of fact upon an application for a peremptory writ of mandamus, there existed "an insuperable obstacle to the success of the relators in these proceedings." Secondly, that "neither by virtue of the special provisions of the Election Law nor through the exercise of the general statutory and inherent powers which the Supreme Court possesses, could the relators obtain the relief which they seek through writs of mandamus."
The correctness of the second ground upon which the decision was placed must depend largely upon the nature of the duties imposed by law upon the inspectors of election. So far as such duties are purely ministerial, involving no act of discretion or judgment, it seems to me clear that the court has the power to enforce obedience to the provisions of the act by mandamus.
"The writ of mandamus lies to compel a public officer to perform a duty concerning which he is vested with no discretionary power, and which is either imposed upon him by some express enactment or necessarily results from the office which he holds." (14 Am. Eng. Ency. of Law, 140, and cases cited in note.) In Kendall v. U.S. (12 Pet. 613) it appeared that an act of Congress provided that the "Postmaster-General be and he is hereby directed to credit such mail contractors with whatever sum or sums of money, if any," should be awarded to the contractors by the Solicitor-General. It was held that this credit to the contractors was a mere ministerial act. It was an official act, but there was no room for the exercise of discretion, official or otherwise. All that is shut out by the direct and positive command of the law, and the act required to be done is, in every just sense, a mere ministerial act; that a writ of mandamus was proper, therefore, to enforce the performance of such act. In People ex rel. Smith v. Schiellein ( 95 N.Y. 132) it was held that mandamus was proper to require the justices of the peace of a town to meet and canvass the votes cast at a town meeting for the relator for a particular office which it was claimed was vacant. In People ex rel. Stapleton v. Bell ( 119 N.Y. 176) it was expressly held that inspectors of election were merely ministerial officers, and that a mandamus was proper to compel them to sign a statement of the votes cast at a general election. In that case it appeared that, after the closing of the polls, the inspectors counted the ballots which had been cast and that the result of the count had been proclaimed; but the inspectors of election refused to sign the return containing a statement of the result of the vote as required by law, on the ground that fraudulent and illegal ballots had been received at the election and placed in the ballot box without the consent or action of a majority of the inspectors. It was held that it was the duty of the inspectors to sign the return; that they were merely ministerial officers to execute the law in a prescribed and definite way; that all votes cast must be counted and returned and the signature of every inspector to the certificate containing the statement required by the law was obligatory upon him. (See, also, People ex rel. Nostrand v. Wilson, 119 N.Y. 515; People ex rel. Nichols v. Board of Canvassers, 129 id. 445; People ex rel. Hirsh v. Wood, 148 id. 147.)
So far as the inspectors of election are by the Election Law required to perform a particular act, in its nature ministerial, not requiring the exercise of discretion or judgment, these authorities establish that they may be required, as prescribed by law, to act by mandamus. What then is the nature of the duty imposed upon these inspectors of election by the General Election Law of the State relating to the original statement of the vote cast at an election which they are required by law to make? The enactment of the General Election Law of 1896 was the result of a popular demand for a reform of the law respecting elections, and the result of the experience of the working of the several amendments to the law which have been passed in late years and which have materially changed the system of voting in this State. The main object of the new law was to change the system from a ballot prepared by the individual voter which represented his wishes as to the public officers to be elected, to a ballot prepared by the State containing the names of all those who were candidates, the voter to indicate by a mark those for whom he wished to vote. With this change, a new and somewhat different method of counting the votes and certifying the result of such count to the boards of canvassers of the several counties was adopted. Under the old law the method of counting was not particularly prescribed, but the new law is much more particular in this respect. An examination of its provisions will show that most minute particulars are prescribed as to the count of the vote; the record to be kept of that count as it proceeded; the publicity to be given to the result as soon as ascertained, and the certification of that result to the officers upon whom was imposed the duty of preserving such records for the final canvass of the vote. It was the evident intention of the lawmakers to preserve, from the moment the canvass of the vote commenced, a complete record of the acts of the election officers, so that through the whole canvass, until the result was finally announced, there could be a record of their proceedings. The act is chapter 6 of the General Laws of the State, being chapter 909 of the Laws of 1896. After providing for the form of the ballot and its preparation by public officials, section 84 of the act provides that the officer charged with the duty of furnishing the official ballots shall "furnish to the board of inspectors of each election district two tally sheet blanks, three ballot return sheet blanks, three election return sheet blanks, * * * three blanks for the report of assisted and challenged electors, which blanks shall be delivered to such board of inspectors as elsewhere provided." The form of the tally sheet blanks is then prescribed, and directions for the canvass of the votes and how it shall be recorded are given. Space upon this ballot sheet blanks is provided for the entry of the vote cast for each person who is a candidate at the election. There is one column for the straight ballots, which would be the same, of course, for each candidate upon a ticket. There is then a blank for the number of votes cast and counted for each candidate on split ballots, and then a column for the total number of votes cast and counted for each candidate. There is also a separate space for the total number of ballots not wholly blank, on which no vote was counted for the candidates mentioned, a space for the total number of wholly blank ballots, a space for the total number of void ballots, and also a space for the total number of ballots accounted for. It is expressly provided that, by adding together the votes cast for all the candidates for a particular office, together with the number of ballots on which no vote was cast for that office, and the number of wholly blank and void ballots on which no vote was counted for any office, the total should equal the total number of ballots voted; and that, unless it does, the count of the votes and ballots is wrong, and they should be recounted. In the provision regulating the use of this tally sheet, in section 84 of the act, the officer who is to keep this ballot sheet is stated to be the poll clerk. He is also required to enter upon this ballot sheet the name and the votes therefor of a person voted for whose name is not printed on the ballot; and it is provided that the method of counting the vote shall be as provided in section 110 of the act. In the sample tally sheet, which is a part of the section, is shown the way in which it is to be used, and this clearly indicates that the tally sheet is to be used to keep a record of the votes as they are counted. Section 110, subdivision 3, provides that the straight ballots shall be separated from the split ballots and counted, and the number of straight party votes for each candidate shall be entered in gross opposite his name on each tally sheet by each poll clerk; that the chairman of the board shall then take the split ballots separately and announce the votes for each candidate in the order of the office printed thereon, and each poll clerk shall make an accurate tally of the same; that the poll clerk shall then add together all the votes for each candidate and the ballots wholly blank and void, together with the ballots on which no votes were counted for any candidate for such office, and shall enter the total thereof in the proper column on the tally sheet. As soon as the count is completed for each office, the poll clerks shall submit the result to the inspectors for examination, and, if found to be correct, the chairman shall at once announce the result.
We have here the detailed instruction for counting the votes, and by section 111 this is designated as the canvass. It is clear from the provisions before cited that this canvass, as specified in section 111 of the act, includes not only the counting of the votes by the inspectors, but the record of the count by the poll clerks upon the tally sheet. This tally sheet, therefore, is made a substantial part of the canvass. It is the official record of the count as it progresses, and upon the completion of the count and the verification of the tally sheet, what there appears is the result of the canvass which is to be announced as the vote of the election district. The provision is imperative that if the number of votes and uncounted ballots and the total ballots voted do not agree, the ballots must be recounted until the record kept by the poll clerks upon this tally sheet does agree with the number of ballots voted. Then, by the same subdivision 3 of section 110, it is provided that "in cities of the first class the chairman of the board of inspectors shall forthwith, upon the completion of the count of votes for each office, respectively, and the announcement thereof, deliver to the police officer on duty at such place of canvass a statement subscribed by the board of inspectors, stating the number of votes received by each candidate for such office. Such statement shall forthwith be conveyed by the said officer to the station house of the police precinct in which such place of canvass is located, and he shall deliver the same inviolate to the officer in command thereof, who shall immediately transmit by telegraph, telephone or messenger, the contents of such statement to the officer commanding the police department of such city. Such statement shall be preserved for six months by the police, and shall be presumptive evidence of the result of such canvass for each such office."
Here we have detailed instruction to the election officers as to how the vote is to be counted. The inspectors are to count, the poll clerks to keep a record upon the tally sheets of such count as it progresses, the number of votes for each candidate to be ascertained by the poll clerks and entered on the tally sheet which is to be verified by the inspectors, a public announcement to be at once made of the result, with a statement of that result given to the police officer to be transmitted to the chief police officer of the city, and by him preserved. This statement thus made, immediately upon the completion of the count, is to be presumptive evidence of the result of the election in such particular district. Upon the completion of that count, the ascertainment of the total vote by the poll clerks upon the tally sheet, the verification of the tally sheet by the inspectors, and the announcement by the inspectors of the result, the canvass is completed. What happens after relates to the duties of the election officers in certifying that result thus announced from the tally sheet as thus kept and prepared, and is merely ministerial. The result thus announced must comply with the tally sheet as kept by the poll clerks, the correctness of which has been verified by the inspectors, and until the correctness of the tally sheet is ascertained, the statute explicitly provides that the count is not complete; the votes have not yet been canvassed. When the record of the count upon the tally sheet has been completed by the ascertainment of the total vote cast for each officer, and the correctness of the additions ascertained, the canvass is complete. Then the public announcement of that canvass must be made, and nothing remains to be done but to make the formal official statement of the completed canvass, the record of which has been duly made and announced, for transmission to the proper authorities. This official statement of the canvass is provided for in section 111 of the act. It is there provided that, upon the completion of the canvass, the board of inspectors shall make and sign an original statement thereof. The making of this original statement of the canvass is clearly a ministerial act, and the statement is clearly to contain the result thus announced, as appears upon the tally sheet kept and verified as prescribed by the act. No discretion is then vested in the inspectors as to what that statement shall contain. The provision is explicit that in that statement shall be the number of the election district, the town or ward, and the city and county in which it was held, on the first page or pages of which there shall be a return of the ballots voted, following which there shall be a separate return for each office of the votes cast for each candidate therefor in the form prescribed for such returns and statement in section 84 of the act.
It is perfectly plain that the return that was to be made by this statement was a return of the votes as cast and counted and recorded in the tally sheet, and no election officer was authorized to vary in the slightest degree from the vote as thus ascertained and counted and recorded. The statute having provided thus particularly as to the keeping of the tally sheets, provided officers whose duty it is to keep them as the records of the vote as counted; having provided for a verification of the record contained in these tally sheets by the inspectors, it was clearly the intention of the Legislature to prescribe that the statement of the canvass should contain the votes as recorded in these tally sheets. No officer was then at liberty to deviate from the result as shown by the tally sheets, and as announced to be the result of the vote in the particular district. It was the duty of these inspectors to transcribe from these tally sheets, upon the official statement of the vote, the totals appearing in the tally sheet as the vote of the district. No other source exists from which a statement could be made. No recount of the ballots by the inspectors after the announcement of the vote was authorized. The official statement was certainly not to be made from the recollections of the inspectors of the vote as they had counted it, and there is provision for the keeping of no other record of the vote, except the record contained upon these tally sheets. The necessity of the situation requires that the tally sheet should be the source from which the inspectors are to make up the statement required by section 111 of the act. Their duty as there prescribed is to make the statement, the result of which they have announced, from the tally sheet, and to make it in strict accordance with the totals contained upon the tally sheet; and having made these statements, and having transmitted them to the officer specified, their duty is performed. We have then the further provision of the statute that these tally sheets are to be preserved; one of them is to be filed with the board of police commissioners and one to be filed with the county clerk, and to be preserved for six months after the election. That the action of the inspectors in making this statement of the vote is ministerial, and that mandamus is proper to compel them to perform this duty, is sustained by reasoning in The People ex rel. Stapleton v. Bell ( 119 N.Y. 175).
It is in this case stated upon oath that the official statements made by the inspectors do not correspond with the public record of the vote as contained in the tally sheet. What is the reply that these inspectors present to the court when charged with this violation of their plain duty of making a return which contains the result as contained in the tally sheet? They say that, "if there is any discrepancy between the said returns and the tally sheets, that the error is not in said returns, but in said tally sheets. That the returns were carefully prepared at the time when the counting of the votes was completed, and the number of votes given to each candidate was put down at the time that the count was completed in the presence of all of the officers of election, and of the various watchers representing the different political parties." No reason is given why the tally sheet, the cotemporaneous record of the count, is incorrect. But, as we have seen, it was the duty of the inspectors to state the vote, not as they recollected it from the count, not as they wished it to be, not as they thought it necessary for the benefit of any individual candidate that it should be, but as it appeared upon the tally sheet kept as prescribed by law. There is no denial of the express allegation of the petitioners that the vote, as returned on the statement, is different from that shown upon the tally sheet. The case is thus presented, without dispute as to the material fact, that these inspectors, bound by law to make a statement containing the result of the canvass as shown upon this tally sheet, have failed to make such a statement. Thus there is no dispute of fact. The fact stands substantially conceded that these inspectors have failed to perform the ministerial act which the statute required them to perform, namely, to make out a statement of the votes as shown by the tally sheet kept as prescribed by law. This was clearly a clerical error. It was an error in transcribing the vote from the tally sheet to the return. The canvass of the vote by the county canvassers is prescribed by sections 131, 132 of the act. By section 131 it is provided that, upon the organization of the board of county canvassers, there shall be delivered to such board all of the original statements and certified copies thereof and the sealed packages of void and protested ballots; and the board was required from such original statements and certified copies and the sealed packages of void and protested ballots to proceed to canvass the votes cast in such county at such election.
By section 132 of the act it is provided that if, upon proceeding to canvass such votes, "it shall clearly appear to any county board of canvassers that certain matters are omitted from any such statement or copy, which should have been inserted, or that any merely clerical mistakes exist therein, they shall have power, and such power is hereby given, to summon the inspectors of election whose names are subscribed thereto before such board, and such inspectors shall forthwith meet and make such corrections as the facts of the case require." The facts of the case, as shown here, are directly within the provisions of this section. There was here clearly a clerical mistake in transcribing the number of votes in these election districts for the several candidates for the offices above named. The statement, as we have seen, was to be the vote as shown upon the tally sheet. The vote as contained in the statement was an entirely different vote from that recorded in the tally sheet, and there was thus a clerical mistake. "Clerical" is defined by the Century Dictionary to be "of or pertaining to a clerk, writer or copyist, as 'clerical errors.'" "Clerical error" is defined in the Imperial Dictionary to be "errors made by a clerk or by a transcriber," and in the Standard Dictionary, "a mistake in copying or writing."
We think that, when it appeared before the board of county canvassers that the original and certified copy of the statements submitted by the inspectors of election certified to a different number of votes from that contained in the tally sheet, it was apparent that a clerical mistake existed therein; that it was the duty of the board of county canvassers to require the attendance of the inspectors before them for the purpose of correcting such clerical mistake, and that, upon the assembling of the inspectors before the board, it was clearly the duty of the inspectors to forthwith make such corrections "as the facts of the case required," viz., a correction in their statements conforming them to the official records contained in the tally sheets as the result of the election.
We think, therefore, that the court below should have granted the motion and required the board of county canvassers to summon before it the inspectors of election from the district named, and require such inspectors to forthwith amend their return so as to correct the clerical mistake and cause their canvass to be correctly stated, viz., by inserting in the statement as prepared by them the result as it appears by the tally sheet kept as prescribed by law.
The orders appealed from are, therefore, reversed and motions granted.
BARRETT, RUMSEY and O'BRIEN, JJ., concurred; VAN BRUNT, P.J., dissented.
I dissent. I do not think that the tally sheets necessarily control. They are evidence, but do not necessarily control the returns.
Orders reversed and motions granted.