People v. . McClellan

Haight, J. This action is in the nature of a quo warranto brought by the attorney-general to oust the defendant George B. McClellan from the office of mayor of the city of New York and to seat William B. Hearst as such mayor, upon the ground that at the election of mayor in that city in the fall of 1905 the defendant Hearst was elected as such mayor instead of the defendant McClellan. After issue had been joined in the action an order was obtained upon the application of the defendant McClellan, requiring the attorney-general to furnish him with a bill of particulars of the allegations of subdivisions 4, 5, 6, 7 and 8 of the complaint, in substance, particularly specifying each election district in which ballots lawfully marked and cast for Hearst were counted as having been cast for McClellan, stating particularly the number of such ballots in each election district and whether straight or split ballots; and also specifying particularly each election district in which marked, void and illegal ballots were counted for McClellan, stating the number in each district; also specifying each district in which men were permitted to vote for McClellan who had not theretofore been registered, the hour of their voting, their names and address, and those who voted more than once at such election ; also each election district in which inspectors failed and omitted to count ballots that had been lawfully cast for Hearst and had failed and omitted to enter upon and embody in the returns of the votes cast for such office, such votes, specifying the number and whether straight or split ballots; and also particularly specifying the election districts in which votes were by the inspectors of election entered upon and embodied in the returns of the votes cast for McClellan which had not, in fact, been cast at all, specifying particularly the number, *346 whether straight or split, etc. Thereupon, and upon December 19, 1907, the attorney-general caused to be served upon the defendant McClellan a verified bill of particulars, specifying a large number of election districts and stating the number of votes in each that he claimed had been improperly counted for McClellan, and then stated, in substance, that he was unable to give any other or further particulars of the allegations of the complaint, for the reason that the full and complete information concerning the allegations could only be had from an inspection of the ballots contained in the several ballot boxes used at such election. Thereupon the defendant McClellan moved the court for an order directing the attorney-general to furnish a further bill of particulars of the allegations contained in subdivisions 4, 5, 7 and 8 of the complaint, complying with the prior order for a bill of particulars by specifying the number of votes miscounted in each election district of Kings county, and particularly and separately what votes were miscounted by acts alleged in subdivision 4, and what votes were miscounted by acts alleged in subdivision 7, and what votes were miscounted by acts alleged in subdivision 8, specifying whether upon split or straight ballots, and that he be required to give further particulars in regard to the allegations contained in subdivision 5 of the complaint, specifying whether the votes alleged to have been miscounted were upon split or straight ballots, arid in default of' such information that he be precluded from giving any evidence of any misconduct or miscount of votes in any election district, and for such other arid further relief in the premises as may be just. This motion was opposed by the attorney-general, who made an affidavit in substance stating that the ballot boxes were in the custody of the board of elections of the city of New York, kept under lock and key, and neither he nor any other person had been permitted to open the same or make an examination of their contents, and that consequently, he could not furnish the information called for. Thereupon the Special Term denied the motion, but on review by the Appel *347 lato Division the order of the Special Term was reversed and the motion granted to the extent of precluding the plaintiff from giving any evidence of the allegations contained in subdivision 6 of the complaint or of any fraud, error, omission or mistake as charged in subdivisions 4, 5, 7 and 8 of the complaint except with regard to the election districts specified in the schedule of the bill of particulars served by the attorney-general. Permission was then granted to appeal to this court, and the following questions were certified: 1. “ Whether, upon the trial of this action, the plaintiff should be precluded from giving any evidence of fraud, error, omission or mistake as charged in the paragraphs or subdivisions IY, Y, YII and YIII of the amended complaint and supplemental complaint, except with regard to the election districts specified in the bill of particulars.” 2. “ Whether upon the trial of this action to test the title of the defendant McClellan to an elective office, if it shall appear that the said defendant had been declared elected by the board of canvassers and had received a certificate of election regular in form, the burden of impeaching the certificate of election, by showing fraud, error or omission in the counting, returning or canvass of the votes will rest upon the plaintiff.” 3. “Whether in such an action any ballot box may be opened and its contents recounted without preliminary evidence tending to show some misconduct, error, omission or fraud in the counting or canvassing of the vote or in the returns.” Upon the argument of this appeal it was conceded by the appellant’s counsel that the second question should be answered in the affirmative. Our review, therefore, is limited to a consideration of the first and third questions certified. It has been suggested that the ordering of a bill of particulars rests in the sound discretion of the Special Term and Appellate Division of the Supreme Court and that such discretion is not re viewable by this court; and that this court ought not to determine in advance the rulings that the trial *348 court should make with reference to the admission or rejection of evidence. The office of a bill of particulars is to apprise a party of the particulars of the claim that he will be called upon to meet upon the trial, so that he may be able to prepare his defense and procure the attendance of such witnesses as he may be able to produce upon the subject. It is not usual, however, to require a party to give the particulars of the evidence of which he proposes to avail himself upon a trial. It is doubtless true that the giving or the withholding of a bill of particulars ordinarily rests in the discretion of the Supreme Court and that discretion cannot be reviewed in this court; but there is a limit to such discretion. It cannot require a plaintiff to furnish the particulars of evidence which is not within his power to furnish or preclude him from giving lawful and proper evidence upon the trial, by reason of his inability to specify in advance what such evidence will disclose. A party may have an intimation in advance as to how a witness will testify upon the trial, but he cannot be certain until after the witness has been placed under oath and his testimony taken. In this case the attorney-general, as we have seen, has sworn that the ballots cast at the election in question were contained in boxes in the custody of the board of elections, kept under lock and key and that no person had been permitted to open and examine their contents, and, therefore, he was unable to give information as to the facts that would be disclosed upon such an examination. The fact that the custody of these boxes, after the close of election, is given to the board of elections and that it is made the duty of that board to preserve and keep the boxes and their contents inviolate, is a provision of the statute, and, therefore, the statement of the attorney-general with reference thereto is not open to question. By referring to the order for the amended bill of particulars requiring compliance with the original order, it is quite apparent that most, if not all, of the information which he is required to furnish, in addition to that furnished by him in the bill of particulars, depends upon the *349 information which is contained in the boxes and can only be furnished upon an examination of their contents. We, therefore, are of the opinion that the order precluding the attorney-general from giving any evidence of the miscount of votes in the election districts in which he was not able to specify the particulars required by the bill of particulars without an opportunity to inspect the ballots contained in the boxes, presents a question of law which this court has the power to determine. It is not a review in advance of rulings that may be made by the trial court in the admission and rejection of evidence; but it is the review of an order of the Appellate Division by which the trial court is required to exclude and prohibit the attorney-general from giving in evidence the contents of the ballot boxes referred to in the order. The order of the Appellate Division is based on the proposition that before the admission of the contents of the boxes in evidence, proof aliunde must be given of misconduct on the part of the election officers, of which, if it existed, the Appellate Division might consider the attorney-general necessarily had knowledge. If, on the other hand, no such preliminary proof is required, there was no foundation on which the order can stand. This case, as we have seen, has been brought for the purpose of determining the question as to whether McClellan or Ilearst was elected mayor at the election in question. That depends upon the determination of the question as to which received a majority of the votes of the electors lawfully cast at such election. The ballots so cast become lawful and proper evidence, and they are contained in the boxes in the custody of the board of elections, and it is our conclusion that neither party can properly be excluded from the right of availing himself of this evidence upon the trial. A further question is presented as to whether the ballot boxes may be opened and their contents inspected without preliminary evidence tending to show misconduct, error, omission or fraud in the counting or the canvassing of the votes. The statute provides that upon the completion of the canvass *350 by the board of inspectors of the ballots cast, “ 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.” (§ 111 of the Election Law, L. 1896, ch. 909.) In the case of People ex rel. Brink v. Way (179 N. Y. 174) it was held that mandamus would not lie for opening of the boxes and to compel a recount of the ballots by a board of town canvassers after the ballots had been returned to the boxes for preservation under the provisions of the statute; that the provisions of the statute with reference to the preservation of the ballots and the opening of the. boxes by the Supreme Court or a judge thereof or a county judge was intended for use in criminal proceedings and to supply evidence in actions in the nature of quo warranto for the purpose of establishing title to office-. Pakkeb, Ch. J., in delivering the opinion of the court, says : “ The object of the preservation of the ballots and the granting of the power to the court to order an examination of them would seem to be that it furnishes a further check upon the perpetration of fraud by local boards of canvassers. It accomplishes this necessarily because the canvassers know that for six months after the canvass the evidence of how the people voted is to be preserved in such form that it may be used not only to deprive possibly the intended beneficiary of the fruit of his office but also that it may be used against the canvassers in criminal proceedings * * * the evidence thus preserved is the best and. most conclusive in proceedings in the nature of quo warranto to try the title to public office, a proceeding formerly *351 embarrassed by the fact that the ballots had been destroyed. * * * This section is not intended to confer upon a judge the power to capriciously order ballot boxes to be opened and examined nor will it be so construed by the courts. The power is conferred to the end that it may be used in judicial proceedings pending or about to be commenced.” In Matter of Hearst v. Woelper (183 N. Y. 274) this question was again considered by Judge Gbay, in which it was held that a mandamus would not lie for the opening of the boxes for a recount by the election inspectors, but the purpose of the preservation of the ballots was, that it furnished the best evidence in proceedings in the nature of quo warranto to try the title to office. And in Matter of Metz v. Maddox (189 N. Y. 460) Cullen, Ch. J., says: “ It is plain that the contest for the present office will largely, if not principally, present questions of fact. The count of the votes now in one of the boxes may differ radically-from the vote returned by the canvassers. The proof given may tend to show that the box has been preserved inviolate and, therefore, justify the admission of its contents in evidence. On the other hand, there inay be evidence tending to show that the box was or could have been tampered with, and there may also be testimony of the election inspectors and canvassers that on the night of the election the ballots in the box were exactly as returned by them in their statement of the count. The vital issue will then be what was the true count of the ballots on election night, and the exclusive determination of that question will belong to a jury.” We are aware that in People ex rel. Dailey v. Livingston (79 N. Y. 279) the trial court ruled that the contents of a box containing ballots should not be allowed to be opened and the ballots recounted without preliminary evidence tending to show some misconduct, omission or error in the returns, but inasmuch as this ruling was against the successful party upon the trial it was not brought up for review in this court. If such preliminary evidence is contemplated by our present Election Law, then a preliminary issue arises with reference to *352 every box containing ballots which is sought to be opened and tlie contents received in evidence. It may be that the inspectors and watchers could be called to give oral testimony as to what they discovered in the count and in the making of the returns on election night, from which it might be found that there was misconduct or omission of duty on the part of those charged with the duty of canvassing the ballots. This evidence may be rebutted by persons present tending to show that there was no misconduct or omission of duty, thus raising a distinct issue of fact with reference to each box that may be offered to be opened and its contents examined, thereby unduly increasing the burdens of the trial and extending it indefinitely. Whether there were errors in the returns or an omission to count the ballots for the candidate for whom they were cast are questions which can be determined from the ballots themselves when the boxes are opened and the ballots counted. .We fail, therefore, to see the necessity for the preliminary proof referred to, and are of the opinion that the statute does not contemplate the necessity of producing such evidence preliminary to the right of either party to the action to avail himself of the evidence which the boxes contain. It is true that preliminary evidence must be submitted showing that the ballots have been preserved in the boxes inviolate, as was said by Chief Judge Cullen in the Metz case, to which we have already referred; • and that such evidence must be of such a character as to satisfy the trial court in the first instance that they have been so preserved before admitting them to be opened and the contents received in evidence, and finally to satisfy the jury of such preservation. But beyond that, we are of the opinion that no conditions are imposed upon the right of the court upon a trial, either to determine the right of a party to an office or his guilt or innocence in a criminal action, at the instance of either party, to open a ballot box and to admit the contents in evidence. It may be different where the boxes are sought to be opened under other circumstances than a trial of an action ; for, as *353 we have seen, from our reference to the Brink case, the statute was not intended to confer upon a judge out of court the power- to capriciously order ballot boxes to be opened and" examined, unless it was to the end that they may be used in judicial proceedings pending or about to be commenced. The purpose of the statute requiring a preservation of the ballots, as we have seen, is that they may be used as evidence upon a criminal prosecution or in an action to determine which candidate was elected to office. It may be that the evidence furnished by the ballots would not become conclusive, for that would depend upon the question whether they had been preserved inviolate and as to whether they had been cast by persons who were qualified voters in that election district. But that they may become important evidence, upon which a jury may act in determining the question presented, there can be no doubt. We conclude, therefore, that the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs, and that the first question certified should be answered in the negative and the third in the affirmative.