[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]
The Supreme Court has awarded a peremptory writ of mandamus, directed to the board of supervisors of Onondaga county as a board of county canvassers, commanding them to reject and exclude from their statement and computation of the votes cast for Rufus T. Peck, in that county, for the office of senator for the 25th senatorial district, composed of the counties of Onondaga and Cortland, at the last general election held on the third of November last, certain ballots cast in the nine election districts hereafter mentioned. This appeal is brought for the purpose of a review in this court of the order granting the writ. It was made upon the application of the relator on a state of facts, as to which there is no dispute, and the question is one of law regarding the power of the court. It appears from the record that certain ballots were cast at the election for Rufus T. Peck for the office of senator in the first election district of the town of Camillus upon which was the following indorsement: "Official Ballot for Second District Poll, town of Camillus,
November 3, 1891," followed by a fac simile of the signature of the county clerk of Onondaga county. In the second election district of that town ballots were cast for him indorsed in like manner, with the designation and number of the first district.
In the first district of the town of Clay ballots were cast for him indorsed for the second district, and in the second district indorsed for the first. In the first election district of the town of Tully ballots were cast for him indorsed for thesecond district, and in the second district indorsed for thefirst. In the first election district of the town of Elbridge ballots were cast for him bearing the indorsement for the third
district. In the second election district of that town ballots were cast for him indorsed for the first district, and in the third election district indorsed for the first. In the first and second districts of Camillus and the first and second districts of Clay the same facts existed, in regard to the indorsement of the ballots for member of assembly for the first assembly district of Onondaga county. The ballots were prepared and printed by the county clerk, whose duty it was, under the statute, to deliver to the town clerk of each town the ballots for the several election districts in such town; but how they became transposed, in the manner above described, does not appear. Four different official ballots, containing the names of the candidates of the four different parties that had made nominations and filed certificates thereof, in compliance with the law, were delivered to the inspectors of election in all these districts, and were in use at the several polling places on the day of the election. What was known as the Republican official ballot, containing the names of the candidates of that party for state, county and legislative offices, was the only ballot used and voted that did not contain, in the indorsement, the proper number and designation of the polling place or election district where it was voted.
On the hearing of the relator's application at Special Term, Rufus T. Peck, upon his own application, was permitted to intervene and was made a party to the record on the ground
that he had an interest in the subject-matter of the proceeding and a right to intervene as a party defendant and that a complete determination of the questions involved could not be had without his presence on the record. In order to facilitate a speedy hearing the attorneys of record entered into a stipulation providing that the questions involved in the case be presented to and determined by the court upon the facts as they appear in the papers. In this condition of the record we are not embarrassed by any technical questions, such as the power of the county canvassers under the statute to exercise any functions of a judicial nature, but we are to meet the broader and more important question whether, upon the facts, the ballots in question can lawfully be counted for the candidate for whom they were cast. The ground upon which the canvassers were directed to exclude the ballots from their estimate and statement of the vote for senator was that they were not indorsed with the number of the election district in which they were used by the electors, as required by the statute, but were, in fact, indorsed with the number of another district. Under the laws in force governing the conduct of elections and the manner of voting, prior to the recent legislation commonly known as the Ballot Reform Act, it is quite clear that ballots could be counted for the candidate for whom they were cast, though they did not in all respects correspond with the directions of the statute, and after deposited in the box, could not, probably, be rejected in any case by the canvassers if the intention of the voter was sufficiently expressed. The right to vote, secured to the citizen by the Constitution, must be exercised in the manner and subject to the regulations lawfully prescribed by the legislature in respect to the time when and the method by which his will is expressed, and in order to make his will and intention effectual at the election, he must comply with, at least, all the substantial requirements of law.
The question now before us is whether those citizens of Onondaga county, who used the ballots, which the canvassers in this case have been ordered by the Supreme Court to reject,
have so far neglected to observe the forms and regulations prescribed by law for voting at elections, that their votes so cast, must be held to be void. In the absence of some clear and positive prohibition in the statute, against counting such ballots, the tendency of the courts would, undoubtedly, be in the direction of effectuating, as far as possible, the intent of the voter. But it is the duty of this court to declare the law as it finds it and if a fair consideration of the language used in the statute, and its general policy, should result in the exclusion of the ballots in question, it may be said that it was not the first time that a citizen attempted to exercise a right, and either through neglect, mistake or ignorance, failed in the accomplishment of his object. We are confronted with certain clear and positive statutory provisions, which must now be referred to in order to ascertain whether the court, in ordering the mandamus to issue, simply obeyed the mandate of the legislature or misapprehended its meaning. What is known as the Ballot Reform Act is chapter 262 of the Laws of 1890, as amended by chapter 296 of the Laws of 1891. It is matter of recent history that this law was for years the subject of agitation and earnest debate both in the legislature and before the people, through the public press and otherwise. 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 law makers and the public. Great care was used in the selection of language appropriate to express clearly what was intended, and every detail, both of composition and arrangement, was the subject of study and deliberation. In dealing with a statute originating as this did, we may well assume that every word or phrase was weighed and scanned, and that courts can safely follow the plain language of its provisions as the expression of the legislative intent. The general
policy and scope of the act was well expressed in the title: "An act to promote the independence of voters at public elections; enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense." We know that the principal mischief which the statute was intended to suppress, was the bribery of voters at elections, which had become an intolerable evil, and this was to be accomplished by so framing the law as to enable, if not compel, the voter to exercise his privilege in absolute secrecy. The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice without the possibility of revealing, by the act of voting, the identity or political complexion of the candidates voted for. When it was made impossible for the briber to know how his needy neighbor voted, the law makers reasoned that bribery would cease. It is reasonable, therefore, to assume that any construction of this statute which would permit ballots to be cast and counted that would reveal the way the voter using them voted, should be avoided as contrary to the true policy and intent of the law. The idea at the very foundation of the law was secrecy. To this end, it was provided that ballots, uniform in size, in type, in color and quality of paper, and in the words and appearance of the indorsement, should be printed and distributed by the county clerk, at the public expense. This is called in the law the official ballot, and is the only instrument by means of which the elector can legally express his will at elections, save in the exceptional cases provided for in section 21. These are cases where the official ballots have not been delivered at the time provided in the statute to the town or city clerk, or shall be destroyed or stolen, after such delivery, or a candidate for any office, whose name is printed on the official ballot, shall have died, shall be or become ineligible, or shall have withdrawn before election day. In such cases, unofficial ballots, to be prepared and furnished under the conditions and restrictions prescribed in the section, may be used by the voter. It is obvious that this section has no application to this case, as none of the events provided for therein have happened.
So careful was the legislature in providing for secrecy in voting that it prohibited the voter from in any way marking his ballot or showing it to anyone, after it was prepared for voting, in such a way as to reveal its contents, and everyone was prohibited from soliciting the voter to show the same, and no person but an inspector of election is permitted to receive a ballot prepared for voting from a voter. (§ 35.) It is, moreover, expressly provided that any election officer or watcher who shall reveal to another person the name of any candidate for whom a person has voted, or who shall communicate to another his opinion, belief, or impression, as to how, or for whom, a voter has voted, or shall place a mark upon a ballot, or do any other act by which one ballot can be distinguished from another, shall be guilty of a misdemeanor, punishable by imprisonment. (§ 34.) It is also provided that a ballot, deposited by a voter in the ballot-box, upon which, or upon any paster affixed thereto, a writing or mark of any kind has been placed by the voter, or by any other person to his knowledge, with the intent that such ballot shall afterwards be identified as the one voted by him, shall be void and of no effect. Most of these stringent provisions would be little short of absurd if it can be supposed that ballots, bearing an indorsement which distinguishes them from all others in use at the polls, can be lawfully put into the ballot-box. The indorsement upon the official ballot was an essential part of the machinery of elections, by means of which the secrecy of voting was to be secured and enforced. That was to be printed in large letters and was to be uniform as to all the ballots at the same polling place. As it was the only part of the ballot to be exposed to the observation of the election officers and the bystanders, at the moment when the vote is offered, it was important to provide that it should contain nothing that could reveal to anyone the elector's choice. The indorsement was, therefore, to be precisely the same on all the ballots used at the same polling place or election district. A different, distinct or peculiar indorsement upon the ballots, or any of them, used by any party or candidate, or set of candidates, would, of course,
remove all secrecy from the act of voting, as to the electors using a ballot with such an indorsement, and thus the fundamental purpose of the law would be defeated.
This was so apparent and was regarded as of so much importance in the successful operation of the law that the legislature carefully prescribed the form of the indorsement to be used upon all ballots at the same polling place in the following language: "On the back of each ballot shall be printed in type known as great primer roman condensed capitals the indorsement `official ballot for ____,' and after the word `for' shall follow the designation of the polling place for which the ballot is prepared, the date of the election and a fac simile of the signature of the county clerk. The ballot shall contain no caption or other indorsement, except as in this section provided."
This provision plainly requires that upon all the official ballots used at any polling place, there shall be printed in the manner therein described, the same indorsement, and consequently that the designation or number of the election district in the indorsement shall be precisely the same and, in all cases, that designation or number shall be that of the polling place or election district where the vote is offered, and no other. The ballots in question were cast in utter disregard of this important provision of the statute, as the indorsement did not in any case contain the designation or number of the election district where they were voted, but did contain the designation or number of another district, where they were not used. The indorsement upon them differed from the regular indorsement on all the other ballots used or voted at the same polling place, and as they were used or voted by but one of the parties that had made nominations or, in other words, in behalf of but one candidate or set of candidates, the voters who used them necessarily disclosed to the election officers, watchers and such of the bystanders as could and desired to observe, the candidates voted for, and thus not only the letter of the statute was disregarded, but its very purpose and intent defeated.
It cannot be denied that anyone who saw the indorsement
on the ballots before they were put into the box was informed at the same time as to their contents by means of the word in the indorsement designating the wrong polling-place or district. While there is nothing in the record to show that the ballots were intentionally, or by any preconcerted arrangement, diverted from the election district for which they were prepared and sent to districts for which they were not prepared nor intended, it is scarcely possible that the means of distinguishing them from all the other ballots used were not known to the election officers who received, and many of the voters who used them. But, however that may be, the important fact remains that every elector who voted one of the ballots thereby revealed his choice and the contents as fully and completely as if the party designation, or the political complexion of the candidates whose names appeared upon its face, had been made a part of the indorsement, or was stamped in some other place on the outside of the ballot. If this can be held to be a legal exercise of the right of suffrage, and that the ballots thus cast are on the same footing as all the other ballots, then it is manifest that the legislature has utterly failed to secure secrecy in voting. The legal consequences that follow this disregard of both the letter and the spirit of the statute have been, as it seems to us, very clearly pointed out by the legislature. The twenty-ninth section as amended provides that "No inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day, any ballot which is not properly indorsed and numbered, except in the cases provided for in section twenty-one of this act; nor shall any inspector of election deposit in a ballot-box, or permit any other person to deposit therein, on election day, any ballot that is torn, or has any other distinguishing mark on the outside thereof." It will scarcely be claimed that these ballots were "properly indorsed," or that they came within the provisions of section twenty-one, and, consequently, the election officers were commanded by the statute not to deposit them in the ballot-box when offered by the voter. Moreover, they had what the statute calls a "distinguishing mark on the
outside;" that is to say, they had, when placed among the other ballots at the polling places where they were used, a special and peculiar indorsement, by means of which they could readily be distinguished from all others, and thus the improper indorsement was at the same time a distinguishing mark. It will be seen, upon a careful reading of the statute, that the legislature has carefully provided for the exclusion of marked ballots from the ballot-box and from the final count and estimate of the actual legal vote in two cases. First, where the mark or writing is affixed or placed upon the face or inside of the ballot, or upon any paster attached, by the voter or any other person, for the purpose and with the intent of subsequently identifying the ballot and tracing it to the voter. In this case the ballot is not to be rejected or excluded from the count and estimate until the intent is ascertained and determined. Secondly, where there is a distinguishing mark on the outside, open and visible to all, which may not only be used to identify the voter who cast it, but also serves to inform others, at the time of voting, of the contents of the ballot, and thus defeat the object of the law in securing secrecy. In this case the election officers are forbidden to put the ballot into the box, no matter with what intent the distinguishing mark was placed upon it. To allow it to go into the box might defeat the policy of the law, though the distinguishing mark was the result of accident or mistake. The plain words of the statute, therefore, made it the duty of the election officers, when offered one of these ballots, prepared for and indorsed with the designation or number of another district, to refuse it. This would not defeat the right of the elector to vote, because he could still prepare and tender a ballot with the proper indorsement. But the inspectors did receive the ballots and put them into the ballot-box, and the remaining question is whether they could lawfully count ballots found in the box, which it was their duty to refuse when offered by the elector. Upon this point the statute seems to be clear and imperative. The thirty-first section provides for the canvass of the votes by the inspectors in these
terms: "The votes for the several candidates shall be canvassed in the order in which they appear upon the several ballots. No ballot that has not the printed official indorsement shall be counted except such as are voted in accordance with the provisions of section twenty-one of this act." We are unable to construe this language when applied to the facts of this case in any other way than as the clear and positive mandate of the legislature to the canvassers to reject and treat as void, all ballots found in the box, prepared for and bearing the designation and number of another and a different polling place or election district than the one where the ballot was cast. The legislature has forbidden the elector to cast such a ballot. It has prohibited the inspectors from placing it in the box and the canvassers from counting it. The case could be no stronger had it in terms declared such a ballot absolutely void for all purposes. But it is said that this result will disfranchise the electors who cast these ballots in good faith, believing that they were the proper official ballots. The answer is that when an elector attempts to express his will at an election by the use, through either design or accident, of ballots which the law declares shall not be counted, the courts have no power to help him. Had these ballots been misplaced by design or some preconcerted arrangement between the county clerk and the candidates whose names appear thereon or some of them, the voter using them might be as innocent then as they appear to be in the case at bar, but to hold, under such circumstances, that the votes must, nevertheless, be counted would be to suggest an easy method of defeating the fundamental purpose of the statute. The law contemplates that the elector will not blindly rely upon anyone, not even the election officers, in the preparation of the ballot. If he is handed an official ballot with a distinguishing mark upon it or an improper indorsement he is not obliged to vote it but may procure a proper ballot. In this case it cannot be said that the electors were obliged to use these ballots or omit to vote at all. It was their duty to see to it that so important a part of the ballot as the indorsement was in conformity with
the statute. They must have known or, at least, could easily have ascertained, that the ballot was prepared for and indorsed with the number of another polling place and then they could have used paster ballots, containing the names of the candidates of their choice, upon some one of the other three official ballots in the hands of the inspectors, and which all concede contained the proper indorsement, and the ballots in question could then be returned to the inspectors. That the use of these ballots was at best a wholly unnecessary and thoughtless act on the part of the voters who cast them, is entirely evident. But, even if it could be said that those electors had no knowledge or means of knowledge in regard to the improper indorsement, and that they could not without some inconvenience provide themselves with ballots such as the law required, we would still be obliged to hold that it would be far better that their votes should be deemed ineffectual than that the fundamental purpose of an important public statute should be subverted and, in the struggle to save these votes by judicial construction, the door should be thrown open for evasions of the statute, which might revive evils far more dangerous to the public welfare than can possibly, under any circumstances, follow the exclusion of a few hundred votes in a single county, cast by voters who, at least, as all must admit, neglected to observe important requirements of the law. It may be freely admitted that no statute, regulating the conduct of elections, should be so construed as to place arbitrary or unreasonable obstructions in the way of the citizen in the exercise of his right to vote; and, further, that any law fairly open to such an objection, would be in conflict with the Constitution. But when we keep in mind the fact that the statute, now under consideration, was intended to prevent corruption and the consequent debasement of the franchise, it was not unreasonable to provide that if an elector attempts to exercise his right in such a way as to reveal the contents of his ballot or to make subsequent identification possible, the inspectors shall not receive it, and if received, it shall not be counted. There is a view of the case, which was
not suggested in the argument and does not appear in the briefs of counsel, but originated with members of the court, that we have carefully considered. It is suggested that when section twenty-nine speaks of certain ballots that the inspectors are not to receive, and section thirty-one of certain ballots that the canvassers are not to count, reference is made only to unofficial ballots, other than those provided for in section twenty-one. This is not the natural and obvious meaning of the language used, and such a conclusion cannot be reached without supplying words that the legislature has not used. The ballot which the inspector must refuse, under section twenty-nine, is there described as one "which is not properly indorsed and numbered," and the ballot which the canvassers shall not count, under section thirty-one, is there described as one "that has not the printed official indorsement." So far as these two sections require inspectors to refuse votes offered, and canvassers to exclude votes found in the box, not regular by reason of neglect to comply with the statute in respect to the indorsement, they obviously refer to the same or similar defects, and apply to the ballots in question. The legislature could not and did not anticipate that any other unofficial ballots, than those provided for by section twenty-one, would be offered or could get into the box, and was not providing against such an impossible or very remote contingency. The prohibitions of these two sections were clearly aimed at evasions or abuses liable to arise in the use of the official ballots, and such as did actually arise at the election in question. As no question of this kind could possibly arise under the laws relating to elections in force prior to 1890, there are no adjudged cases by the courts to be found in this state that furnish any aid in the solution of the question before us; but enactments, similar in their provisions and identical in policy, have been before the courts of many of our sister states for construction. One of the earliest cases on the subject was that of Commonwealth v. Woelper (3 S. R. 29). In that case the election was one for officers in a religious corporation, but the principle decided applies to public elections. What
was known in that case as the German party succeeded at the election, having cast five hundred and thirty-one ballots. The tickets voted by them were marked with the figure of an eagle. The elections were regulated by a corporate by-law which provided that "if, besides the names, there are other things on the ticket, or if two or more votes are found together, such ticketsshall not be read off or votes counted." The defeated party claimed that the tickets marked with the eagle ought not to have been counted, though the voters who cast them were members of the congregation entitled in all other respects to vote and to have their votes counted at elections. On a trial at nisi prius the jury were so instructed and the election was held invalid. On appeal this instruction was held to be correct. The court (TILGHMAN, Ch. J.,) said:
"The fifth and last point turns on the construction of the by-law before mentioned. The tickets in favor of those persons who succeded in the election had on them the engraving of an eagle. The judge who tried the cause charged the jury that those tickets ought not to have been counted. The case is certainly within the words of the law. The tickets had something more than the names on them. But is it within the meaning of the law? I think it is. This engraving might have several ill effects. In the first place, it might be perceived by the inspectors even when the ticket was folded. This knowledge might possibly influence him in receiving or rejecting the vote. But, in the next place, it deprived those persons who did not vote the German ticket, of that secrecy which the election by ballot was intended to secure for them. A man who gave in a ticket without an eagle was set down as an anti-German, and exposed to the animosity of that party."
In West v. Ross (53 Mo. 350), the statute provided that "no ballot not numbered shall be counted," and the question arose as to whether ballots cast for a successful candidate for county clerk, not numbered, should be excluded from the count. It was conceded that no fraud was intended by the inspectors in failing to number the ballots, but it was occasioned by an inadvertance on their part. It further appeared
that the number of ballots counted corresponded with the number of voters appearing on the poll list. The court, however, held that these votes were void. In the opinion, the court said:
"This case may be a hard case, and doubtless is; but the legislative enactment is clear, and although it may deprive a portion of the citizens of the county of their right to be heard in the election of a clerk at one election, it is better that they should suffer this temporary privation than that the courts should habituate themselves to disregard or ignore the plain law of the land in order to provide for hard cases.
"In the present case, the legislature has provided and required that the ballots should be numbered, and then provides in express terms that no ballot not numbered shall be counted. Can we say that such ballots shall be counted without an attempt at judicial legislation? I think not, and it would be a misapplication of terms to say that such a statute is only directory."
In Oglesby v. Sigman (58 Miss. 502), an application was made for a mandamus to compel canvassers to reassemble and recanvass votes cast for member of congress, and to reject ballots claimed to be illegal, by reason of the fact that they contained certain marks and devices prohibited by statute. The statute provided that the ticket should not contain any "device or mark by which one ticket may be known or distinguished from another," and that a "ticket different from that herein prescribed shall not be received or counted." The court held that ballots marked in violation of the statute were void, and in the opinion, it was said: "We think the effect of section 137 of the Code of 1880 is to condemn as illegal, and not to be received or counted, every ballot which has on its back or face any device or mark, other than the names of persons, by which one ballot may be distinguished from another. This statute does not condemn devices or marks on the outside of a ballot merely, but clearly embraces the face of the ballot as well. That is apparent from the exception contained in it, and a device or mark on the face of the ballot is as
much within what we suppose to have been the object of this provision as one on the outside or back of it. It is apparent from the provision that its object is not only to preserve secrecy as to what ballot an elector casts, which is the leading idea of statutes in some other states, which prohibit any device or mark on a ballot folded, which betrays the secret of the voter, but also to secure absolute uniformity as to the appearance of ballots, in order that intelligence may guide the electors in their selection, and not a mere device or mark by which ignorance may be captivated. The legislature was trying to prevent multitudes from `being voted,' and being guided by a mere device or mark by which they should distinguish the ballots they were to use in the process, without a knowledge of the names of persons for whom their ballots were being cast. Elections are a contrivance of government, which prescribes who are electors and how they may express their will, and it is a legitimate exercise of power to prescribe the description of ballot which shall be used."
It has been held upon similar grounds that a ballot printed upon colored paper in violation of a statute requiring them to be printed upon white paper, was void. (State v. McKinnon, 8 Oregon, 493.) And that a ballot was properly rejected which did not conform in length and in other minor respects to a statute prescribing the form of ballots to be used. (Reynolds v.Snow, 67 Cal. 497.)
In Connecticut, under a recent statute, in many respects similar to ours, the official ballot contains the name of the political party using it. At a municipal election, eighty-six ballots were cast containing the caption "Citizens" at their head, but were in all other respects the same as the Republican ballots, including the candidates' names. But as there was no party in the city known as the Citizens party, it was held that these ballots were void and could not be counted. In that case, the statute prescribed the form of the ballot which is to contain among other things "the name of the political party issuing the same," and then provided that "all ballots cast in violation of the foregoing provisions, or which do not conform
to the foregoing requirements, shall be void and not counted."
The reasoning of the court by which that conclusion was reached is applicable here. (Talcott v. Philbrick, 59 Conn. 472.) Other cases could be cited which hold the principle that ballots cast by electors, not conforming to the provisions of a statute intended for the purpose of securing secrecy, and which reveal the contents, or render it capable of subsequent identification, are void by force of prohibitions in the statute against receiving and counting them in substance the same as is to be found in the statute under consideration. (Field v. Osborn,
21 Atl. Rep. 1070; In re Vote Marks, Id. 962; Ledbetter v.Hall, 62 Mo. 422; Perkins v. Caraway, 59 Miss. 222; State
v. Calhoun, 61 id. 556.)
We think that these ballots cannot be counted without weakening or breaking down provisions of the statutes which, in view of its general purpose, must be regarded as vital. For these reasons, the order appealed from should be affirmed.