People Ex Rel. Noyes v. . Bd. of Canvassers

*396 O’Bbien, J. The Supreme Court, upon the application of the relator, has made an order directing that a peremptory writ of mandamus issue to the board of supervisors of the county of Chemung, constituting the board of county canvassers, commanding them forthwith to reassemble and reconvene, recanvass and retabulate and forward to the secretary of state a true and correct canvass and statement of the result of the last general election, so far as the same relates to representative in congress in six of the election districts in the city of Elmira. The board was further required to make the estimate and tabulated statement from the face of the original returns of the inspectors of election in these election districts, instead of from the ballots on the back thereof. The order directing the writ was made after the board of county canvassers had canvassed the votes given for all officers voted for at the general election held in the county, including the vote, for representative in congress for the twenty-eighth congressional district, of which the county formed a part, and had filed a certified statement of the result of such canvass in the office of the county clerk of the county and the secretary of state as required by law. The relator claims that the board did not comply with the statute in making the canvass, and that the result of the vote, in respect to representative in congress in the six election districts so made, certified and filed by it is not correct. Before examining the question involved in the appeal from the order, it is proper to notice a preliminary question. The record submitted to us is accompanied by a motion to the court, made upon notice and affidavits, from which it appears that, the board of state canvassers, in pursuance of the statute, met and organized as such board at the office of the secretary of state on the 5th day of December, 1890. That it then and there proceeded to canvass and did canvass the vote given for officers at the preceding general election, including representative in congress for the various congressional districts of the state, from the returns and certified statement on file in the office of the secretary of state, made and filed by the various boards of county canvassers in the several counties. That the *397 vote for representative in congress from the twenty-eighth congressional district was canvassed from the returns and certified statements received from the several boards of county canvassers of the county comprising the district, as certified and filed in the office of the secretary of state by the county clerks of the several counties. That there was but one return or certified statement from each county in the congressional district, and no protest or claim that any return on file and before the state canvassers was in-any respect erroneous. That from the statement of the vote for congress, contained in the statements from the counties comprising the twenty-eighth district, it appeared that Hosea H. Rockwell had received the greatest-number of votes, and was elected to that office. The board of state canvassers made a statement in writing of the result, duly signed and filed the same and delivered a certificate to said Rockwell of his election, in compliance with the statute. Gn these facts we are asked by counsel for Rockwell to stay all proceedings upon this appeal, on the ground that any decision that we can make will be entirely ineffectual. That there is. no power to review or change the action of the state canvassers upon the returns before them, or to recall the certificate of election issued. That the only authority now competent to review the action of the state canvassers is the house of representatives, in virtue of its ultimate power, under the Constitution,, to judge of the election of its own members. Ho good reason has been or can be given for-staying the appeal at the request of the parties bringing it here, but to my mind there are cogent-reasons for refusing to hear it and disposing of the case by dismissal. The time and attention of this court is sufficiently occupied by the pressing demands of actual and practical litigation, and it ought not to be asked to listen to arguments and examine records involving questions purely abstract or theoretical, or when it appears that its judgments or decisions can have no practical effect upon the controversy. This seems tome to be a case of that character. But the court has arrived at the conclusion that we ought not to anticipate what may occur in the future in regard to the practical consequences of *398 our decision, as a reason now for declining to hear an appeal regularly and properly before us. We do not know, from the record, what effect, if any, the method of canvassing the vote in the six election districts, adopted by the county canvassers, had upon the result as declared by the state canvassers. All we do know is that the principle adopted gave, in these districts, to Mr. Roclrwell, a few votes more, and to Mr. Noyes a few votes less than the manner of canvassing directed by the mandamus. It is conceded that immediately after the close of the polls in each of the six election districts, on the 4th of November, 1890, the inspectors counted the vote for representative in congress in its regular order, publicly announced the result, inserted in words written at full length in the body of the certificate, the whole number of votes given for each candidate, certified the statement to be correct and signed the same, and then dissolved as a board of inspectors and canvassers. The result thus announced and inserted in the certificate, in these particular districts, gave, in the aggregate, to Ilosea IT. Rockwell, four hundred and fifty-eight votes, and to Henry T. Noyes, four hundred and eighty-eight votes for .member of congress. The election was held under chapter 262 of the Laws of 1890, and it is possible that the inspectors may have been ignorant as to what parts of the law, governing the conduct of elections and the canvass of the vote, existing prior to that enactment, remained still in force. No facts appear in the record upon which intentional fraud or dishonesty can be imputed to them. That they were wanting in the knowledge necessary for an efficient performance of the duty imposed upon inspectors of election, is quite clear. They failed to attach to the statement signed by them, the sample ballots as directed by the statute (1 R. S. [8th ed.] p. 421, § 42), and they also failed to destroy the ballots voted, but carefully preserved them, some of the inspectors, apparently, being of the impression that they were required to file them with the county clerk. The inspectors’ returns were presented the next day to the county clerk for filing in his office, but he refused to receive or file them for the reason that no sample ballots were *399 attached. The inspectors, or a majority of them in each district, thereupon opened the sealed packages in which the ballots voted were placed the night before, in some of the districts, and the boxes in which they were locked up in others, recounted them, and attached in each case one of each variety cast to the return and wrote, partly upon the ballot and partly upon the paper to which it was attached, in words, the number of such ballots voted, as required by the statute, and then the returns were delivered to the county clerk and by him filed. These facts are common to five of the districts. In the other, the second of the first ward, the inspectors attached the sample ballots with the statement thereon to a new certificate, in which was written in the body thereof the number of Azotes cast for each candidate as slioAvn by the writing on the ballots, and Avhicli Avas four votes less for Mr. Noyes, and four votes more for his opponent than announced and inserted in the paper the might before. The numerous affidavits embraced in the record contain many details touching the counting of the vote at the -close of the polls and the events following AAutli, possibly, some shades of difference, none of which, Ave think, are important to notice here, as the foregoing statement is sufficiently full and .accurate for all purposes of the question which we are to decide. The controversy arises upon the conceded fact that there Avas before the board of county canvassers a certificate of the inspectors of election which contained one result of the vote for member of congress in the body of the paper, and another and different result in the writing on the attached ballots. The board canvassed and estimated the voté for member of congress in these districts according to the Avriting on the ballots, and not according to that contained in the body of the paper, and this method of canvassing and estimating the result gave Rockwell four hundred and eighty-one votes and Noyes four hundred and sixty-six votes, or RockAvell twenty-three votes more and Noyes twenty-two votes less than the number announced at the close of the canvass by the inspectors, and inserted by them in the certificate. The question is Avhether *400 the board of county canvassers, in thus canvassing and certifying the vote, performed the duty imposed upon them by the law. It was not their duty to ascertain which of the candidates was in fact elected, nor even which of them in fact-received the greatest number of votes in the six districts, but. simply to determine from the documentary evidence before them, furnished by the action of the inspectors, and upon which alone they could act, the number of votes given for each candidate respectively for representative in congress. This, document, from which the canvassers are required, in a ministerial capacity, to estimate and certify the vote is called in the statute a statement; and this controversy arises from wliat. appears to be an honest difference of opinion between' the-learned counsel who have ¡presented the case as to the true scope and meaning of that word. On the one hand it is argued that when there is a conflict between the writing on the attached ballots and that inserted in the body of the paper, the board, in canvassing the vote, is bound by the latter, while, on the other hand, it is insisted that the attached ballots and the writing thereon are a part of the statement, and it is within the power of the board to estimate and certify the true vote, from them. The question thus becomes one purely of construction. The importance of an honest and consistent administration of the laws governing the conduct of elections and the preservation of every safeguard provided by the law, for the purpose of ensuring a true and honest canvass and return of the vote cast, has often been emphasized in the opinions of courts, and cannot be too often stated. In a government resting wholly on popular suffrage, few questions can ever come before the courts so intimately connected with the very structure of political society and exerting such a wide influence-upon the public welfare as those concerning the enforcement, and construction of the laws relating to elections and the canvass and return of the vote. When they are open to construction they should receive from the courts, if possible, such an interpretation as is most likely to secure the object of their enactment. It is quite unreasonable to suppose that the *401 election laws of this state have been so framed as to render it legally possible, in every election district, to produce a conflict between the result of the vote, as written upon the attached ballots, and that expressed in the body of the paper, and at the same time leave the county canvassers in each county at liberty to adopt whichever result is most in harmony with then personal or political affiliations. Such a construction would open the door to abuses the most grave and dangerous. A system so elastic would destroy all confidence in the result of elections, and would very soon become intolerable. An intelligent and consistent administration of our statutes relating to the canvass of the vote by county canvassers, requires that when there is conflict in this respect they shall be bourd by some rule that is reasonable and certain, and not subject to variation, according to the discretion of each board. In my opinion the writing in the body of the certificate, expressing the result of the count by the inspectors at the close of the polls, and publicly announced by them and certified under their official certificates to be correct, must prevail over any contrary result that can be obtained from the writing on the ballots. The words written into the paper by the inspectors must be deemed to express the actual and correct result of their count. They are precise and certain and to the effect that a certain number of votes were given for a person therein named for a designated office. Not so with the writing on the ballot. That imports simply that a.certain number of tickets of each variety were voted, from which and from an inspection of the sample ballots themselves, the actual vote for any given candidate may or may not be accurately ascertained. A result so deduced would practically amount to a recount of the ballots by rhe board of county canvassers, instead of an estimate and canvass of the vote upon the certified statement of the inspectors as the statute requires. The act of the inspectors in stating the vote in the body of the paper, the certificate that the same is correct and the signature of each of them to the certificate is, so far as the county canvassers are concerned, fundamental, jurisdictional and con *402 trolling, while the words on the ballot are subordinate and incidental and the duty of the inspectors in respect to the same is probably directory merely. The form of the statement wlii ch the inspectors are to make and upon which the board is to act is pointed out by the statute with care. It must have a caption, stating the day on which, and the number of the district, the town or ward and the county in which the election is held, a statement showing the whole number of ballots, for each person, designating the office, which shall be .written in words at length; and, at the,end thereof, a certificate that such statement is correct in all respects, which shall be subscribed by the inspectors (§ 44). By a recent statute it is enacted that this statement shall be made upon a single sheet of paper, or if not, each half sheet shall be signed at the end thereof, by the inspectors. (Laws 1880, ch. 56, § 11.) When this word statement was first used to designate the return of the district inspectors to the county canvassers, there was no provision for attaching any ballots, but, on the contrary, it was expressly provided that, upon the subscription thereof by the inspectors, they should immediately destroy all' the poll-books and the ballots voted. (Laws 1822, ch. 201, § 9.) The case of The People ex rel. Yates v. Ferguson (8 Cowen, 102), decided in 1827, turned upon the effect to be given to certain ballots, which the inspectors had rejected as defective. The Revised Statutes enacted soon afterthis decision, changed the law as previously existing, only so far- as- to require defective ballots to be preserved and filed with the town clerk. In the next election law, passed in 1842, (Laws 1842, ch. 130) the inspectors Avere required to attach to the statements, not only the defective ballots, but a sample of all others Aroted, with the writing thereon, showing the number of each kind cast, and this section has remained unchanged ever since. (Id. § 42, p. 122.) At the same time it Avas enacted that the poll-books should be preserved and all the ballots voted, not so attached, should be destroyed. The history of the provision first requiring the specimen ballots and writing thereon to be attached to it, shows that it Avas never intended that the latter could be used by the county canvassers to over *403 throw the resn.lt certified by the inspectors in the paper, made immediately after the count. (People v. Pease, 27 N. Y. 85, 86.) They are mere exhibits that no more control the words of the statement than did the defective ballots, when first required to be preserved and attached. The county canvassers may cause any return to be sent back to the inspectors for the purpose of correcting clerical errors. The ballots voted are, in contemplation of law, destroyed' immediately after the completion of the count by the inspectors, except such as are required to be attached to the statement. The board might return a statement to the inspectors for the purpose of attaching the sample ballots and noting thereon the number of each kind voted, so far as that could be done, but not for the purpose of a recount to vary or contradict the result expressed in the body of the certificate. It would be absurd to require inspectors to recount votes after they were required by law to destroy them. The recent statute (Laws 1880, ch. 460) confers power upon the court to require, by order, a board of county canvassers, after it has dissolved, to reconvene and correct any errors .in its canvass of the vote at an election, and the order granted in this case is, we think, fairly within its scope. In our opinion the statement, in the body of the paper as to the vote for representative in congress in the five districts, and in the other, the statement made on the night after the election, must control the action of the county canvassers. If it be claimed that the actual result at the polls was different in fact, from that shown by this statement, that question must be left for the determination of another tribunal. These views lead to an affirmance of the order.