In re Merow

McLennan, P. J. : The irregularities which occurred in submitting the local option questions at the general election and toivn meeting held in the town of Little Valley, county of -Cattaraugus, in the year 1905, were not of such character or importance as to render such submission void and to entitle the petitioner to a resnbmission of such questions at a special town meeting to be held for that purpose as provided in section 16 of the Liquor Tax Law (Laws of 1896, chap. 112, as amd. by Laws of 1905, chap. 680). The appellant claims that there were at least eight irregularities in the submission of those questions, but apparently only three are regarded of sufficient importance to require a decision reversing the express will of the majority of the electors as evidenced by the number of votes cast for and against such questions. Indeed, each of the other irregularities complained of affected equally the election of all the town officers and all ballots cast at such election, and if of sufficient importance to invalidate the result as to the local option — 564 — questions, a total disfranchisement of the electors of the town would logically follow. .Yet we think no court would seriously consider á proposition'so drastip. The alleged misleading instruction card indicating, among other things, a different arrangement of the knobs than was actually upon tile voting machipe, affected alike all ballots cast. The suggestions ' that the local option questions were printed in -small type; that the voter could only remain in the booth one minute, and, therefore,, might .he .unable .to determine how and for what to vote, apply with equal force to the submission of the proposed constitutional amendments voted' for at the election in' question. The three alleged irregularities- which are urged as sufficient to authorize ihe annulment of the election, so far as the vote upon the local option questions is concerned, are the following: 1. The failure to print upan such'local option ballot, or slip placed in the voting machine a heading or caption, like those found in section 16 of the Liquor Tax Law (as amd. supra), immediately preceding each question authorized to be submitted. 2. The failure to number such ballots or slips from 1 to 4, both inclusive, and as numbered in the Liquor Tax Law (as amd. supra). 3. The failure to make the instruction card 'correctly represent the face of the voting machine. The further discussion will be confined to those three alleged irregularities, with a view of ascertaining whether'they are of Such ^character and importance as to justify the'annulment of the election in so far as it returned an answer to the local option questions submitted. Clearly such should be the determination if any mandatory requirement of the .statute was not complied with, or'if it appears that by the methods employed the voters were misled or prevented from-freely answering the questions submitted to them; We think there is no statute which requires a town clerk, the officer who by law* is charged with the duty of preparing the ballots for the submission of town propositions, including the local option questions, to cause to be printed upon,-such ballots a heading or caption. • Section 16 of the Liquor Tax Law' (as amd. supra), so far as it relates to that matter,, provides: “In order to ascertain the. — 565 — will of the qualified electors of each town, the following questions shall be submitted * * *: “ Question Í. Selling liquor to be drunk on the premises where sold.— Shall any * * * person be authorized to traffic in liquors * * * by selling liquor to be drunk on the premises where sold, in” (the town of Little Valley)-? Then follow the'other three questions which are authorized to be submitted, and each is preceded by the word “ Question,” by the numbers 2, 3 and 4 respectively, and by a heading or caption similar in form to that quoted above. It is claimed that by omitting to print upon the ballot such heading or caption all the votes cast for or against the same were void. Such heading or caption is no part of the question. The words “ Selling liquor to be drunk on the premises where sold,” do not Constitute a question. Lío answer can be made to such words. The question, in each instance, distinct, concise and complete follows such words and it alone is required to be printed. Section 16 of the Liquor,Tax Law .(as amd. supra) provides: “ Whenever such questions (local option) are to be submitted * * * it shall be the duty of each officer charged by law with the duty of preparing the official ballots for such town meeting or election, to have prepared * * * .the ballots required by the Election Law for voting upon any constitutional amendment, proposition or question in the form and of the number required by the Election Law, upon the face of which shall be printed in full the said questions ■(local option) as heretofore stated.” There is no provision in the Election Law which requires headings or captions on the ballots for voting upon proposed constitutional amendments, and none were added to the ballots for the seven proposed constitutional amendments voted for a-t the election in question. (See Election Law [Laws of 1896, chap. 909], § 82, as amd. by Laws of 1901, chap. 598; Id. §§ 167, 180, added by Laws of 1899, chap. 466.) In that respect the ballots for the local option questions and for the proposed constitutional amendments were identical, and, as it seems to me, in strict compliance with the requirements of the statute. ’ It may be that if the headings or captions had been added to the ballots in question the voters could have more readily identified any — 566 — particular question, but evidently the ¡Legislature did not deem it of sufficient importance to. make ifone of' the requirements of the stat-. ute;. Indeed, if the- Legislature deemed' it proper that, proposed amendments to the Constitution should be submitted without such ' headings or captions, it would be difficult to conceive of any good reason why such would be required in the submission of local option questions. These questions and the proposed amendments to . the Constitution-were printed in apparently the same type (as we judge from careful inspection of the photographic exhibit attached to the record); the electors had precisely the same opportunity to ascertain the contents of the ballots for each; the proposed constitutional amendments were Certainly as important as the questions Submitted, and all the suggestions to the effect that the ballots were printed, in small type, that- the voters could remain in the booth only one. minute, apply with equal force to-the proposed amendments.- ¡But there is not the slightest evidence in the record that either the local option questions or the - proposed amendments were printed in small type, and there is no claim by the petitioner that such- questions as printed. were not entirely legible, easily read, or that any voter ■ experienced any difficulty in reading and ascertaining the contents of the same. / v ' The statute (Election Law [Laws of 1896, chap. • 909],. § 167, added by Laws of Í899, chap. 466). prescribes in the following language the ballots to be used in voting machines duly authorized to be Used in ¿this State: “All ballots shall be printed in black ink on ' clear, white material,, of such size- as will fit the ballot frame, and in plain, clear type as the space will reasonably permit. * * ¡No other direction or. requirement is-to be found relating to the form of the ballots, to be used in voting machines,-abd this provision applies to all ballots to be voted. - It nowhere appears that this provision was violated in the preparation of any of the ballots voted at the election in question, and- the. question of color of material and ink used, or plainness,, clearness or size of type employed in the preparation of the ballots for the election in question,, was not raised' by the petitioner on his application at Special Term nor on the appeal in this court. ¡Neither is there any statutory requirement which in expres's terms, at-least, makes it the duty of a town clerk in preparing ballots for — 567 — the submission of local option questions to number the same from 1 to 4, both inclusive. In the case at bar, if such alleged requirement had been followed, it necessarily would have caused confusion, for then, upon the face of the voting machiné, there would have been a duplication of such numbers. The first series of numbers from 1 to 4, relating to the first four proposed constitutional amendments to be voted on, and the second series, relating to the local option questions, would have been identical, and, therefore, such numbering would not have aided in identifying either. As arranged, the ballot for the first proposed constitutional amendment put in the machine was numbered “1,” the next “2,” etc. We think it cannot be claimed that it was the intention of the Legislature to require the ballots for the local option questions upon the same" machine to be numbered in precisely the same manner, especially so when it is evident that such course must tend — if it had any effect—to décéive, mislead and confuse the elector. The objection that the instruction card did not in all respects correctly yepresent the face of the voting machine is apparently not regarded of sufficient importance to have rendered the result of the election void so far as the local option questions are concerned. But it is urged that .such defect, taken in connection with the others referred to, establishes the proposition that the electors were deceived and misled to such extent as that there should be a resubmission of those questions. The moving papers wholly fail to show that any elector was so . misled or deceived. ■ It is not shown that each voter did not have full and free opportunity to enter the voting booth; that he could not or as matter of fact did not, read and -fully understand each question printed upon the local option ballots as well"’as upon the ballots for the proposed constitutional amendments and the names of" the candidates for office printed upon the other ballots placed in the voting machine. Neither is there any allegation that any elector was prevented or experienced difficulty in locating the local option ballots upon the machine, or in improperly identifying each. Indeed, the number of votes cast very conclusively indicates that there was a very free expression of the electors upon- those questions. It appears, as stated in the affidavit of Mr. Champlin, who is president of one of the largest manufacturing establishments in — 568 — Little Valley, that he was present at such election; “ was present practically all day in the room where- said machine, stood, and that such front -and such license propositions thereon were in full, plain view for a space after each voter left the machine; that at no time on that day were said propositions misplaced on said machine up to 5 o’clock. * * . * That said machine appeared to be in. perfect order in all its parts,, and lie heard no coihplaint or suggestions from any'one that, it was not working satisfactorily and in a manner to record the will of any voter operating it during the entire day.” Marlon D. Bryant, one of the inspectors of election, deposes that hte was present the entire day in the. discharge of his duty as inspector, and that he observed “ the working of said voting machine-; that he heard no complaint and observed no trouble with its operation at any time except that several voters, four • or five, had to be assisted as the law provides by reason of physical infirmity of the voters ; that no suggestion was made,by anybody that came to. deponent’s knowledge that the propositions to be voted on' upon the Excise question Or any other question were misplaced oh said machine, or that there was any difficulty experienced by any voter in voting as he desired upon those propositions or that he had failed to do so after attempting it. * *'. * ■ The face of the machine was well lighted and perfectly visible all day; that deponent’s position on the whole of said day was almost directly in front, of tit and he was within.six feet of the front of the -machine all day long; that he many,times during the day observed'the face of the machine; that there was no displacement of the ■ propositions upon the excise questions, and they remained all day in the position in which they were when the machine was set up and voting begun., * * * That from the time-when the polls opened in the morning the face of the machine was perfectly illuminated both by an incandescent electric light, properly placed for that purpose,' and also by a lantern hung inside the. curtains in front of the face of the machine, and at no time from the time the polls opened until they closed was such' lighting neglected, nor was there any time when the face of the machine was not well lighted so that anybody could plainly read all there was. upon it.” It appears by the affidavit of James H. Wilson, who for the last five years has been supervisor of the town.of Little Valley, that hé — 569 — was present on election day, saw the machine in operation; in substance, that it worked smoothly, and that no complaint was made by any voter, so far as he knew. It appears by the affidavit of Henry Bramer that he was employed from the first day of November until the day of election to instruct voters how to operate the machine and how to vote upon the local option questions, by the use of a dummy machine set up for that purpose; and that the ballots so arranged upon such dummy corresponded with the ballots as arranged upon the voting machine used; and that any elector of the town who so desired was given full and accurate instructions by him as to how to vote upon the local option questions. George W. Korn says he was present and voted; “ that everything upon the face of said machine, including said propositions^ was perfectly and easily readable, and he had no difficulty in voting as he desired to vote for any candidate or upon any proposition.” John J. Sullivan states in an affidavit made by him that “he was one of the Board of Election Inspectors having charge of the election ; * * * that with the exception of about one-half hour for lunch, deponent was at all times present at the polling place; * * * that deponent observed the working in said voting machine during the entire day while he was present; that there was at no time and from no individual any complaint or suggestion that such machine was not in perfect working order. . * * * “ Deponent further says that from the time and before the time of the opening of the polls on election day. the face of the machine voted upon whs well and perfectly illuminated both by an electric light so placed so as to light the front of the machine in the best possible manner and only a short distance therefrom, and also by a lantern hung in front of said machine within the curtains so that there could be no question about the perfect lighting of the face of the machine, and at no time during election day was there any complaint or suggestion on the part of any voter who voted in said machine that the same was not properly lighted, or that he was unable to read anything appearing upon the face of the machine; that great pains (were) taken by the election board to see that this was done, and the claim now made that said machine was not lighted perfectly is without foundation in fact. * * * — 570 — That deponent did not hear on election day, and does not believe that any voter who voted at said election failed to vote as he designed to vote upon any proposition or for any candidate, and on election day no claim was made by anybody to the knowledge of deponent that any man had failed to register his vote in accordance with his wishes, or that he had any difficulty in so doing by reason of any defect or trouble or by reason of any. arrangement of propositions upon the machine.” We think the very great weight of the evidence is in favor of the proposition that no elector was misled by reason of the irregularities complained of, or that he was prevented from freely expressing his will at the polls. It seems to me manifest that if there had been difficulty in that regard, some voter during the entire day and while the election was in progress, would have made complaint. There was a contest upon the question of local option. It created intense interest in the town. Indeed,'while the whole number of -electors who voted was 493, 411 voted on the local option question first upon the machine, and the result shows a surprising similarity in the number of affirmative votes cast for the several propositions. On question No. 11 there were- 187; on No. 12, 187; on No. 13, 180; and on No. 14, the hotel question, 178. -These figures indicate that those in favor of no license voted practically in the same- way upon each of the propositions except the last, and that their votes were accurately recorded. The whole complaint of the petitioner is based upon technicalities, the alleged failure to comply with some provision of the statute rather than of substance, and not because the electors were misled or deceived or prevented from freely expressing their will upon the questions- submitted to them. Such irregularities should' not be seized upon to defeat and thwart the will of the electors when it is clearly demonstrated that they did not affect the result or in the least interfere with the exercise of the right of any elector to vote as he saw fit upon the questions submitted. We think the rule is correctly stated in the case of People ex rel. Hayes v. Edwards (42 Misc. Rep. 567) by Mr. Justice Davy: “ The election should not be declared invalid On the ground that the officer having charge of the printing of the ballots made an honest mistake or some slight omission in the printing of the ballots, — 571 — unless they are fraudulent or affect the results of the election or render it uncertain.” In one off the earliest cases decided by the Court of Appeals of this State (People v. Cook, 8 N. Y. 67, 86) it was said : “ The defendant, failing to show the return false, seeks to reject it altogether on account of the non-compliance by the inspectors with some of the provisions of the election laws. There are various duties enjoined by law on the inspectors, the great objects of, which are: 1. To afford to every citizen, having a constitutional right to vote, an opportunity to exercise that right. 2. To prevent every one deprived of that right from voting. And 3. To conduct the election in such a manner, in point of form, that the true number of legal votes can be ascertained with certainty. If all these objects be accomplished, as they seem to have been in this case, to reject the whole poll, because the inspectors failed to comply with every prescribed regulation, would be, as was well remarked by one of the judges in the court below, to place a higher value on the statute regulation, than on the right itself. It would be a sacrifice of substance to for rnP In a later case decided by the Court of Appeals (People ex rel. Hirsh v. Wood, 148 N. Y. 142, 146) it is said: “We can conceive of- no principle which permits the disfranchisement of innocent voters for the mistake or even, the wilful misconduct of election officers in performing the duty cast upon them. The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult.” In People ex rel. Leonard v. Hamilton (42 App. Div. 212) it is said': “ Irregularities in the statement will not be invoked to defeat the will of the electors. This in no particular infringes upon the right of every interested party to test the validity of the election, and the existence of this right, irrespective of the statement, shows that the latter cannot be made paramount to the intention of the electors.” Upon the authority of the cases referred to — and many more might be cited to the same effect — we think it ought not to be held, under the facts disclosed by the record in this case, that the election in question, so far as it relates to the local option questions, — 572 — should be declared void. There was a fair contest upon those questions. No' one complained of the manner in which it was being conducted while it was in progress. Every one was satisfied until the result was declared, and the. defeated party then for the first time made complaint and sought to have a new election and another opportunity to compel the people of the town of 'Little Valley to have the saloon or barroom forced upon them against the will of the majority. And it is sought thus to thwart the express will of the electors solely because of the alleged non-compliance of the election officers with some technical requirement of the statute, and not because the result was affected thereby or because any elector was prevented from voting as he desired. We conclude that no mandatory requirement of the statute necéssary to a valid election was omitted ; that the will of every elector was expressed and recorded as by him intended, and, therefore, that the ’order appealed from should be affirmed, with costs. Nash, J., concurred ; Krüse, J., concurred in separate memorandum ; Spring, J., dissented in an opinion in which Williams,. J., concurred. Footnotes [*] See Election Law (Laws of 1896, chap. 909), § 86, as amd. by Laws of 1905, chap. 643—[Rep.