Matter of Hearst v. . Woelper

Gray, J. The learned justices of the Appellate Division appeared to have been swayed from their contrary convictions by the decision of the Second Appellate Division in Matter of Stiles, (69 App. Div. 589), and by an observation in the prevailing opinion in this court, later, in People ex rel. Brink v. Way, (179 N. Y. 174). In Stiles case, errors were alleged in the tally sheet and it was held that they were such as to require *279 the re-con veiling of all the election officials, under the provisions of section 84 of the Election Law. It was said in the opinion that “ the law required a ‘recount.’ It does not appear that this was done, and, therefore, the court may and should order it to he done. And the recount required by the mistake on the tally sheets implies that there shall be a count, whether merely a re-reckoning or, if necessary, a re-canvast prescribed by law. That the poll clerks as well as the inspectors are necessary officials * * * and the court may order them to be brought in.” It was, .further, ordered that the election officials, upon re-convening, should proceed in conformity, “ in every respect, so far as possible, to the procedure prescribed and required by the statute to be done on the day of election, in view of the provisions of section 84 thereof,” etc. In People ex rel. Brink v. Way, a writ of peremptory mandamus had issued, upon the application of a defeated candidate for the office of supervisor of the town of Ulster, at the general election of 1903, requiring the town board of canvassers to re-con vene and to re-can vass the vote cast. The application was not based upon section 84 of the Election Law; nor did the facts alleged bring the case within it, as the opinion expressly declared. It was held, in effect, that no provision of the Election Law conferred the authority upon the court to issue such a writ. In the course of the discussion, the provisions of section 84 were referred to as authorizing a re-count of ballots, where a discrepancy exists between the ballot clerks’ return and the statement of the tally sheet. That re-count, however, as the opinion asserts, was the duty of the board to make “ on their own motion upon their attention being called to violations of the statute by some one or more members,” and it was, further, said that “ in the event of a failure to make such a re-count the court may by mandamus compel it; ” referring to “ a mistake in the count,” as shown by the discrepancy between the tally sheet and the ballot clerks’ return. That was an unnecessary, and a too broad, statement in the opinion. Possibly enough, when taken by itself, it would go very far towards indicating the belief in the *280 existence of tlie power to require a re-count; but it is not to he so taken. It is apparent from the rest of the opinion that the learned judge, who delivered the opinion, had in mind what might be done before the canvass and inadvertently expressed himself upon the subject. When, subsequently, (p. 179), discussing the provisions of section 111 that, after the completion of the canvass and the proclamation of the result, the ballots should be re-placed in the box, to be securely locked and sealed and deposited with the board, or officer, furnishing the same, where it is to be “preserved inviolate for six months after such election,” it was said that the authorization of the court, or the judge, to open the box did not extend so far as to direct a re-count; only “to open the box and to permit its contents to be examined.” It was then pointed out that the best evidence was thus preserved for use in. jirocecdings in the nature of quo warranto to try the title to office. “ The language of section 111,” he says, “ considered in connection with section 114 makes it very clear that the legislature does not intend to permit the court to order a re-count of the votes in the box. * * * The" power is conferred to the end that it might be used in judicial proceedings pending, or about to be commenced. * * * The purpose of the legislature in so framing the Election Law as to continue the policy of preventing the judiciary from sitting in review of the ministerial work of the board of canvassers may, without difficulty, be conjectured,” (pp. 180, 181), and that purpose is explained in the necessity, in the public interest, that the canvass “ should be promptly carried on ” and not delayed by a procedure in court. Too broad an inference from the opinion, in that case, is checked by the repudiation of any power in the court, or the judge, to review the ministerial work of the election officers, or to permit aught else than an examination of the contents of the sealed ballot box in judicial proceedings. So that, with reference to these two cases, which have been regarded as controlling the judgment of the learned Appellate Division below, I think we should hold that the Stiles case erroneously construed the Election Law and that the *281 Brink case did not sanction the conclusion of the court; whether in what was actually decided, or from the opinion read as a whole. The Stewart Case, (155 N. Y. 545), has no application in what was decided there. This case is important, not so much because of the question of which candidate is entitled to the particular office, as because of the principle to be declared in the construction of our law regulating elections to public office. -The legislature has seen fit to provide a plan for voting at elections, whereby the elector casts a secret ballot. The design was to counteract the vicious influences exerted, whether by political leaders, or by others, to control the elector’s will and to protect him in the free exercise of his right'of suffrage. . It was the object of the Election Law, which was enacted in 1896, to permit a secret ballot, to secure an honest count and to preserve, for a reasonable time, the best evidence in the event of judicial, or of legislative, proceedings, instituted, after the election was closed, for the purpose of criminally convicting the unfaithful election officer, or of trying the title of a person to the office, to which he claims to have been elected, or of an inquiry conducted by the Federal, or by the State, legislature, to determine the right to a seat in the body. Whether the Election Law accomplishes all of the promises of its defenders, or whether the directions for the mode of casting a vote have proved to be the wisest, or the rnost practical, about which opinions may well differ, it is not for the court to pronounce. The provisions of the law are to be given the fullest effect which they permit of; but, in my opinion, no construction by the courts is justified, which permits of judicial interference with, or revision of, elections beyond what is plainly found to be authorized by the statute. That the courts may enforce provisions of the law and compel obedience to its commands may be true ; but I do not believe that the legislature intended that the court, or a judge, should sit in review of the ministerial work of the election officers and I do not find any provision of this law which goes so far. It is not a question of whether they should have the power, but of whether the legislature has conferred it. *282 There is no room for the play of sentimental opinion. The plain duty of the court is, simply, to so construe the statute as to effectuate its provisions; leaving it to the legislative power-to supply omissions, .or to remedy defects. The case made by the petitioners for the writ falls within section 84 of the Election Law, concededly. That section prescribes the form and contents of the tally sheet, upon which the inspectors are required to account for all the ballots voted. The section provides that, “ at the extreme right of such sheet there shall be a column headed, ‘ Total number of ballots accounted for,’ in which shall be entered opposite each office the sum of the total vote cast for all candidates for the office, together with the number of ballots not wholly blank, on which no vote was counted for that office, the total number of wholly blank, and the total number of void ballots, and the votes cast, if any, for candidates for such office whose names are not printed upon the ballot. Such sum must equal the number of ballots voted, as shown by the ballot clerks’ return of ballots, and if it does not, there has been a mistake in the count, and the ballots must be re-counted for such office.’ Section 110 of the Election Law, pursuant to which section 84 directs the vote to be counted, after stating the method of counting, among other things, provides for the cases where there were more ballots found in the box than are shown to have been deposited, that is, by withdrawing the excess in a certain manner, not necessary to be now described, and where ballots, not void, are objected to as marked for the purpose of identification, when they must be counted, but with the objection indorsed upon them by the inspectors. Section 111 provides for an “ original statement of the canvass and certified copies ” and that the statement shall contain the number of general ballots protested as “ marked for identification ” and “ the number of void ballots rejected; ” which two classes of ballots are to be “ secured in a separate sealed package * * * filed * * * with the original statement of the canvass.” The section, then, provides that “ forthwith upon the completion of such original statement and of such *283 certified copies thereof, and the proclamation of the result of the election as to each candidate, the ballots voted, except the void and protested ballots, shall be replaced in the box from which they were taken, together with a statement as to the number of such ballots so replaced. Each such box shall be securely locked and sealed, and shall be deposited with the officer or board furnishing such boxes. They shall be preserved inviolate for six months after such election and may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county, and at the expiration of such time the ballots may be disposed of in the discretion of the officer or board having charge of them.” Section 114 provides, only, for a judicial investigation of the statements as to ballots objected to as marked for identification, or rejected as void. A provision of that section, quite pregnant of the legislative intention, expressly, provides that, in such case, the “ Boards of inspectors of election districts, and boards of canvassers, shall continue in office for the purpose of such proceedings.” The evident meaning is that, but for the provision continuing those official boards for the purpose, they would have been funoti officio and beyond the command of the court. Section 114, therefore, has reference only to an investigation of the ballots, which have not been placed in the sealed box; while section 111, conferring no power upon the court, or judge, to order a recount of the ballots, quite plainly, has for its purpose the preservation of the ballots, which have been counted as valid by the election board, for use in judicial, or legislative, proceedings, as evidence upon which to determine the title to an office assumed. We are, thus, confined to the provisions of section 84 for any authority to grant the application for an order to re-count the ballots cast and counted at the election and, in my opinion, the direction for their re-counting is addressed as a guide to the inspectors of election. This section discloses no authority conferred upon the court to interfere and its careful reading and consideration distinctly import that when the tally sheet, which is made up *284 by the inspectors, differs from the return of the ballot clerks of ballots given out to voters, the mistake, at once appearing, in the count must be corrected by them by a re-count. The language is “ Such sum, (that 'is, of the total vote ‘ accounted for’ by the inspectors upon the tally sheet as having been cast), must equal the number of ballots voted, as shown by the ballot clerks’ return of ballots, and if it does not, there has been a mistake in the count, and the ballots must be recounted,” etc. That is to say, the mistake being made by the inspectors in their account of the ballots voted, they must at once go over again and re-canvass the ballots. That the provision is in the nature of an instruction to the inspectors of election is shown by its being contained, in a foot note upon the' “ sample ” tally sheet described in the law and upon the tally sheets issued to them. The section does not say, nor imply, that the court may, at some time subsequent to the closing of the election, order a re-count. There is no provision for a later return. It is to be observed that, when the inspectors have completed their work, and have proclaimed the result, the counted ballots have been placed in a box under lock and seal, and section 84 docs not confer any authority, in terms, upon the court to re-open and to re-count. The power to open a ballot box is conferred by section 111 and is confined to an examination of the contents. A good reason may be found for the non-interference of the court with the ministerial work of the election officers in the higher necessity that the result of a public election shall be promptly made known. It is a wiser policy that the result shall not be still left in uncertainty, after its proclamation by the board of inspectors at the close of the canvass.. It is impolitic that 'the administration of governmental affairs should be permitted to be embarrassed through the delays occasioned by a judicial re-opening of the canvass, at the instance of any defeated candidate. Some finality of action on the part of the election board was intended and the power to review appears to be confined to the decision upon ballots rejected as void, or as marked for identification, (sec. 114), *285 leaving any further examination of the ballots, which have been counted without objection and sealed up, to be made in the proceeding instituted by a defeated candidate to try the title of his successful opponent to the office. The Election Law has endeavored to safeguard an election, in explicit directions as to the performance of their duties by the election officials, and there are provisions of the law and of the Penal Code for their punishment, if guilty of misfeasance, or of neglect of duty. Further, the preservation of the ballot boxes, under lock and seal, is directed for six months as evidence for use in the courts. I think that the presumption should obtain, as to the proclaimed result of an election, that the election officers have performed their duties and that a defeated candidate should be left to such action at law, or otherwise, as may be appropriate, wherein to question it, as to the ballots counted without objection. I agree with the view of Mr. Justice Laughlibt, when, speaking for the Appellate Division, lie says that “ full scope may be given tó the Election Law without attributing to the legislature an intent to authorize the opening of the ballot boxes for the purpose of a re-count, or re-can vass, of the vote de novo by the election officers.” He points out what consequences would follow, if section 84 shall be held to authorize the order, which was granted in this case, when he says: “ If the election officers are to be re-convened under the mandate of the court to re-count the votes, on account of the discrepancy between the ballot clerks’ return and the tally sheet, it is manifest, I think, that they are then in precisely the same situation as they were on election night before filling out and signing the original statement of the canvass and certified copies thereof. If that be so, it follows that on the re-count required by the statute to discover their mistake, they not only would have the right, but it would be their duty, to reject from the count any void ballots that had been previously overlooked or erroneously counted. It is evident that if there be any authority to order a re-count in compliance with said section 84, the order should not limit the statutory duty of the inspectors on the re-count.”. Clearly, if *286 it should be held that a re-count might be ordered under section 84, it is to be by all of the election officers and it must be with the formalities prescribed and with the exercise of all the authority conferred, as upon the original canvass. If so important an exercise of a judicial power of supervision, or review, was intended, I think it should have been stated and not left to implication. I think it the sounder and the safer view to take of this law that, for the absence of unmistakable language, it should not be construed as permitting such judicial interference with election results, as this order amounts to. The provision for the preservation of the ballots is not new in this state. In 1872 an act was passed requiring it to be done in the city of Brooklyn. In an action in the nature of quo warranto, relating to the office of surrogate of Kings county, a question arose as to the admissibility of the ballots, thus preserved, and, it is interesting to observe, it was held by this court that it was incumbent upon the party offering the evidence, the relator, to show that the boxes had remained inviolate. It rvas observed that the evidence was fraught with such serious consequences as to inquire the utmost scrutiny and care in receiving it and, hence, public policy, as well' as the rules of evidence, required that the burden should be upon the relator in establishing that the ballots had been rigorously preserved, according to the law. (People ex rel. Dailey v. Livingston, 79 N. Y. 279, 290.) It results from what has been said that the Appellate Division justices were right in their convictions and that the court was without power, or authority, to order a re-count of the ballots cast in the election district and, therefore, that the order appealed from should be reversed and the application should be denied ; with costs in all the courts to the appellants.