Opinion
June Term, 1898.
Edward L. Jellinek, for the appellants.
Seward A. Simons, for the respondent.
There is some confusion in the case with reference to the blank ballot. The return of the inspectors of the third election district of the first ward of Buffalo, whose acts are challenged as to the result of the election of the 2d of November, 1897, states that there was one blank ballot which was not counted. Their return, as above given, states that there were eight ballots which were protested as being marked for identification. The record on this appeal does not give a copy of the ballots or of the marks thereon, which, it is alleged, invalidates them, but we were presented upon the argument with the return of the inspectors and the original ballots which included Exhibit No. 7 (the blank ballot); but it appears plain that eight defective ballots were counted and embraced within the result, taking the record altogether.
The proceeding by mandamus out of which this appeal grew seems to have been taken under section 114 of the Election Law of 1896 (Chap. 909), from which we quote: "If any certified original statement of the result of the canvass in an election district shall show that any of the ballots counted at an election therein were objected to as marked for identification a writ of 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 board or body of canvassers, if any, of the return of the inspectors of such election district, and otherwise to the inspectors of election making such statement requiring a recount of the votes on such ballots. If the court shall, in the proceedings upon such writ, determine that any such ballot was marked for the purpose of identification, the court shall order such ballot and the votes thereon to be excluded upon a recount of such votes."
A like proceeding was authorized if votes had been rejected as void that should have been counted.
The appellants' first point is, that subdivision 3 of section 110, requiring when a ballot is not void, and the ballot is challenged as having been marked for the purpose of identification, that the inspectors should write upon the back of said ballot the words "objected to, because marked for identification," should specify such mark or marking and should sign the statement, had not been complied with, and that, therefore, the case did not come within section 114.
While the statute requires this formula on the part of the inspectors, it is not essential to give the court jurisdiction of the proceedings. Section 114 confers jurisdiction if the certified original statement of the result of the canvass shows that any of the ballots counted by them were objected to as marked for identification. It is true that that statement of the return is not in words borne out by the indorsements upon the ballots, but, as has been stated, the objections were in fact made upon the counting of the ballots by the person authorized to make such objections (an inspector or a watcher at the polls), and in determining what the entries meant upon the ballots, they may be taken in connection with the return, and it thus appeared that the protests referred to in the indorsements related to the marks for identification.
The appellants also make the point that there was no proof taken as to the purpose of the marks; the court simply inspected the ballots and made the order thereon.
It will be seen from the statement of the marks and crosses upon all the exhibits, except the blank ballot, that the inspection which the court made was sufficient to show that the ballots were illegal and void and should not be counted, and that they came within the condemnation of section 105 of the Election Law, from which we quote:
"It shall not be lawful to make any mark upon the official ballot other than the cross X mark used for the purpose of voting with a pencil having black lead, and that only in the circles or in the voting spaces to the left of the names of candidates, or to write anything thereon other than the name or names of persons not printed upon the ballot for whom the elector desires to vote in the blank column under the proper title of the office; nor shall it be lawful to deface or tear a ballot in any manner, nor to erase any printed device, figure, letter or word therefrom, nor to erase any name or mark written thereon by such elector. Any ballot upon which there shall be found any mark other than the cross X mark used for the purpose of voting, or a name or names written otherwise than as heretofore provided, and any ballot which shall be found to be defaced or torn, or from which there shall have been erased any device, figure, letter or word, or which shall have been marked or written upon other than by a pencil having black lead, shall be wholly void and no vote thereon shall be counted."
If any of the prohibited marks, or other acts, appear upon the face of the ballot, it is void by the terms of the statute, and the court is not permitted to consult the intention of the voter with reference to such marks or crosses. The purity of the ballot depends to such an extent upon observing the forms prescribed by the Legislature to prevent corruption in the suffrage, and to prevent means by which the voters may be identified by the votes, that the forms prescribed by the statute should be strictly observed in counting ballots.
In People ex rel. Wells v. Collin ( 19 App. Div. 457) the third department of the Appellate Division had occasion to consider the question whether the placing of a cross X mark before the name of a candidate, but not in the voting space prescribed by statute, made the ballot void.
PARKER, P.J., speaking for the court in a well-considered opinion, held that it made the ballot void under the section of the statute we have quoted. Upon appeal to the Court of Appeals the decision was affirmed. ( Sub nom. People ex rel. Wells v. Common Council, etc., 154 N.Y. 750.) (And see, also, People ex rel. Bantel v. Morgan, 20 App. Div. 48.) As strongly sustaining these conclusions, see Feeny v. Board of Canvassers ( 156 N.Y. 36).
But the learned counsel for the appellants contends that, in this proceeding, the court had only jurisdiction to direct a recount of the ballots upon its becoming established that the marks upon the ballots were for the purpose of identification, and that the statute under which this proceeding is instituted treats these ballots as not void, but as voidable only, and, therefore, the fact that the inspection of the ballots disclosed that they were void would not justify the court in this proceeding to order a recount.
This is entirely too narrow a view to entertain of this proceeding.
The petition and affidavits brought up the return of the inspectors and the ballots, and they were before the court, and upon the facts presented the court was at liberty not only to exercise its statutory but its common-law jurisdiction under the writ of mandamus. The statutes authorizing mandamus proceedings with reference to elections do not assume to divest, neither do they divest, the court of its common-law jurisdiction in election cases.
The Code of Civil Procedure does not define the cases in which the writ of mandamus will lie. It simply regulates the procedure. The writ of mandamus is an ancient common-law writ. The relator must have the right to a performance of some particular act or duty at the hands of the respondent, and the case must be one where the law affords no adequate remedy to secure the enforcement of the right and the performance of the duty which it is sought to coerce. ( People ex rel. Bailey v. Supervisors of Greene, 12 Barb. 217.) And this is subject to the restriction that this must be a right to have the act performed by some corporation, officer, or board, or by an inferior court. ( Dunklin County v. District Co. Court, 23 Mo. 449; Fiero Spec. Proc. 40, 41.)
Mandamus to election officers to compel them to do their duty in cases where they have no discretion has frequently been resorted to in this State. ( People ex rel. Smith v. Schiellein, 95 N.Y. 124, and cases cited on pages 133, 134; People ex rel. Smither v. Richmond, 25 N.Y. Supp. 144-150; Gleason v. Blank et al., 36 id. 938.)
The statute pronounces these ballots void, and it was, therefore, the duty of the inspectors of election to have rejected them; they violated their duty in including them within the count of ballots of electors. It was the plain right of the relator to have these votes rejected. He has no adequate remedy at law. His proper and perhaps only remedy is by mandamus. The common-law jurisdiction of the court came in in aid of the statute. But the statute § 114) should be liberally construed with reference to the objects sought to be attained by it. The purpose was to eliminate void ballots from the count, whether those ballots were void because they were marked for identification or for any other reason. If the order of the Special Term is to be construed as basing its decision that the ballots were void upon the ground that they were marked for identification, and that reason should turn out to be not established by the proofs presented to the court, it does not vitiate the order appealed from. If a wrong reason was given by the Special Term for the order it made, the order may still be maintained, inasmuch as the result of the order was right and it was authorized by law.
Under election statutes superseded by the present one some discussion has arisen in the courts as to how far the intent of the voter must be proved to mark his ballot for identification before it can be rejected. ( People ex rel. Hasbrouck v. Supervisors, 135 N.Y. 522; People ex rel. Nichols v. Board of Canvassers, 129 id. 407; People ex rel. Bradley v. Shaw, 64 Hun, 361.)
We do not deem it necessary to determine the question whether the court under the present statute may regard all marks not authorized by statute as made for the purpose of identification, as we have found a sufficient reason to sustain the order appealed from upon the ground that the ballots were void and in no sense voidable.
The order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with costs.