Opinion
Argued January 17, 1910
Decided January 25, 1910
A.S. Gilbert and Julius M. Mayer for petitioner, appellant and respondent.
James C. Church and Denis O'Leary Cohalan for intervenor, respondent and appellant.
Counsel differ as to the rule of construction that should be applied to the Election Law (Cons. Laws, ch. 17) with reference to the method of marking ballots by electors. This difference of opinion relates especially to two words appearing in the statute, to wit: 1. The word "single," as used in subdivision 9 of section 368 as follows: "A void ballot is a ballot upon which there shall be found any mark other than a single cross X mark made for the purpose of voting." 2. The word "straight" as used in rule 7 of section 358 as follows: "One straight line crossing another straight line at any angle within a party circle, or within the voting spaces, shall be deemed a valid voting mark."
It is practically impossible for a person to make a line that is technically straight without the use of mechanical appliances. The construction of the statute so far as it requires "one straight line crossing another straight line" should be liberal. In construing the word "single" the same rule of construction should apply so far as consistent with the fact that it was used by the legislature after this court, in People ex rel. Feeny v. Board of Canvassers ( 156 N.Y. 36), had liberally construed the general language of the statute as it then existed relating to the cross mark and also in connection with the use of the word "one" in said rule 7 of section 358 of the present statute.
Such construction should be adopted that a tremulous line drawn by an infirm elector or an irregular or curved line drawn by an elector with poor eyesight or with muscles untrained to the use of a pencil, or any single line but once crossing another single line in such a way as to substantially comply with the statute (even if it is somewhat hooked at the end or the line has been retraced and the pencil has not been kept exactly on the line at parts removed from the point where the lines cross) should not be held void.
Counsel for the parties in open court stated that there is no claim on this appeal that the disputed ballots were marked by the voters with fraudulent intent.
Applying the rules above stated we are of the opinion that the order appealed from should be reversed as to the ballots marked Exhibits Nos. 13, 15, 16, 33, 36, 58, 67, 90, 96, 124, 134, 135, 138, 147, 149 and 160, which said ballots were declared valid by the Appellate Division and which said ballots should be declared void, and said order appealed from should be further reversed as to the ballots marked Exhibits Nos. 35, 145 and 170, which said ballots were declared void by the Appellate Division, and which said ballots should be declared valid.
In all other respects the order appealed from should be affirmed, without costs to either party.
I think the Appellate Division was right in substantially all the instances in which it held a ballot valid. The provisions of the statutes as to the character of the voting mark to be made by the elector must be construed most liberally; otherwise, the whole voting scheme provided by law would, in my opinion, be unconstitutional. The elector must be given a reasonable opportunity to exercise the right given him by the Constitution of the state, and that opportunity must be reasonable, bearing in mind human infirmities. It was conceded on the argument that in the case of every one of the ballots before us the intention of the voter was honest, and there was no design to mark the ballots for identification. This concession should uphold those ballots. The opinion of the majority of my brethren concedes that the line of the cross mark need not be straight, despite of the statutory requirement to that effect, and properly so concedes, for it would be impossible for a large proportion of the electors to make an absolutely straight line without the aid of a rule or mechanical contrivance, especially in the dim and flickering light afforded by a single candle in the voting booths of New York city. I think the necessities of the case equally require a liberal construction of the statute in other respects; otherwise, as already said, the statute might be unconstitutional.
GRAY, EDWARD T. BARTLETT, VANN and CHASE, JJ., concur in per curiam opinion; HAIGHT and WILLARD BARTLETT, JJ., concur in result, being in favor of a liberal construction of the statute in all respects; CULLEN, Ch. J., reads dissenting memorandum.
Ordered accordingly.