The relator, Brink, was the Republican candidate for the office of supervisor of the town of Ulster, Ulster county, at the biennial election held with the general election on November 3d 1903. One McNamee was the Democratic candidate for the same office.
This proceeding seeks to review the action of the election officers in election district No. 4, and of the town board of canvassers of said town. The returns from election district No. 4 showed a total vote of 207, 196 being for McNamee and *Page 185 11 for the relator. The canvass of the town board showed a total vote of 667, 334 of which were for McNamee and 333 for the relator. According to the returns from district No. 4, none of the ballots were blank, rejected as void, or marked for identification; and there were ninety-nine split ballots.
The affidavits upon which the peremptory writ of mandamus was issued alleged, among other things, various irregularities in the conduct of the election and the counting of the vote in district No. 4.
It is unnecessary to consider certain allegations in these affidavits as to illegal voting and irregular and improper action within the polling place prior to the closing of the polls. The opposing affidavits deny certain of these allegations and the issues thus raised cannot be disposed of under the peremptory writ.
The moving papers, however, contain allegations charging the election officers with failure to observe certain provisions of the Election Law, which are not denied in the opposing affidavits. The attempted denials are mere conclusions of fact and law that raise no issue. A few of such denials are: "That said election and the canvass of votes cast thereat were in all things fairly, honestly and legally conducted." "That the canvass of the votes at said election was conducted in the manner prescribed by law; that the tally sheets of the votes cast for the several candidates for office at said election were duly kept and were duly filed as required by law," etc. "That the poll clerks made a due and correct return as provided by Section 84 of the Election Law."
The relator charges in substance: (1) That the chairman did not read off the split ballots; (2) the poll clerks did not tally the same; (3) they were tallied by two of the inspectors; (4) they were not passed to the other inspectors for verification; (5) the defendant McNamee was allowed to handle some of the ballots; (6) the tally sheet in the town clerk's office contains no entry in the proper column of the number of straight party votes counted for any candidate on the Republican ticket; nor does it contain in the proper column *Page 186 any entry of the number of votes cast for relator on split ballots, but in such column it contains the words "eleven votes" written over an erasure; (7) the tally sheet in the county clerk's office bears evidence of alteration as to the vote of supervisor and is not signed or certified.
It also rests upon direct evidence, only partially denied and in a most unsatisfactory manner, that more than eleven votes were cast for the relator in election district No. 4.
It is claimed that these irregularities and the failure to canvass all of the votes cast for relator, are in violation of the Election Law, section 110, subdivision 3, and other provisions, to which reference will be presently made.
On this state of facts the Special Term made an order directing the issuance of a peremptory writ of mandamus, addressed to the board of inspectors of election in election district No. 4 of the town of Ulster; the poll clerks in said election district; the town clerk of said town, and the justices of the peace of said town, who, together with said town clerk, compose the town board of canvassers, commanding a recount and recanvass of the vote in said election district. Thereupon a peremptory writ of mandamus issued, and the defendant duly appealed to the Appellate Division from the order of the Special Term, which was unanimously affirmed.
On the appeal to this court the defendants insist that the Special Term had no power to grant the order from which the original appeal was taken. They point out that section 111 of the Election Law provides for preserving the ballots voted, for a period of six months after the election, securely sealed in the boxes from which they were taken, and that the same may be opened and the contents examined by order of the court, and that at the expiration of such time the ballots are to be disposed of in the discretion of the officer or board having charge of them. The argument of the appellants is that this section authorizes no recanvass or recount, but simply an examination.
As to the alleged irregularities that the chairman did not read off the split ballots; that the poll clerks did not tally the *Page 187 same; that they were tallied by two of the inspectors; that they were not passed to the other inspectors for verification, they stand undenied and are in clear violation of the Election Law, section 110, subdivision 3, which reads: "The straight ballots, that is, the ballots on which all the candidates on one party ticket and no others are voted for shall be separated from the split ballots and counted, and the number of straight party votes for each candidate shall be entered in gross opposite his name on each tally sheet by each poll clerk. The chairman of the board shall then take the split ballots separately, and announce the vote for each candidate upon each such ballot, in order of the offices printed thereon, and each poll clerk shall make an accurate tally of the same. As the votes on each split ballot are counted, such ballot shall be passed to the other inspectors for verification."
As to the undenied charge that the defendant McNamee, one of the candidates for supervisor declared elected, was allowed to handle some of the ballots, it is additional evidence of the reckless and illegal manner in which this election was held; a flagrant disregard of the law is clearly established in this and other respects.
As to the alleged irregularities that the tally sheet in the town clerk's office shows no entry in the proper column of the number of straight party votes counted for any candidate on the Republican ticket, and that it does not contain in the proper column any entry of the number of votes cast for relator on split ballots, but in such column contains the words "eleven votes" written over an erasure; and also as to the allegation that the tally sheet in the county clerk's office bears evidence of alteration as to the vote for supervisor, and is not signed or certified, it is clear that these alleged irregularities are in violation of sections 84 and 110, subdivision 3, of the Election Law.
We have here a tally sheet that fails to comply in almost every respect with the provisions of law.
Section 111, which deals with the original statement of canvass and certified copies, provides, among other things, as *Page 188 follows: "Forthwith upon the completion of such original statement and of such 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."
It is argued by the appellants that it is the clear reading of the Election Law that there are two provisions thereof which confer authority upon the court; one, providing for a recanvass and recount of void and protested ballots which are not replaced in the ballot boxes to be sealed; and the other, referring to the voted ballots which are replaced in the ballot boxes and sealed. As this case involves only the latter ballots, it is necessary to construe the law in regard to them.
The appellants argue that the law provides for but one situation in which a recount can be had under order of the court, and that is to be found in section 84, where the form of the tally sheet is provided for in detail. The material part of the section reads as follows: "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 *Page 189 count, and the ballots must be recounted for such office." (Jewett's Election Manual, eleventh ed. 1903, pp. 98-9.)
A reading of the entire section in this connection very clearly discloses the legislative intention that where this discrepancy appears at the close of the count there must be forthwith a recount before the final result is announced. This provision does not refer to mistakes or frauds sought to be remedied by a recount compelled by mandamus.
It is also argued by the appellants that the only other object of keeping the ballots in the boxes under seal is for the purpose of producing them in a proceeding in the nature of quo warranto, or some other action to test title to office.
I am of opinion that the Election Law bears no such narrow construction, and if it were possible to so limit and construe it, it would be entirely inadequate to accomplish the results designed by its framers. I am further of the opinion that this court is fully committed to a construction of the law sustaining the position of the relator in this proceeding.
In Matter of Stewart (155 N.Y. 545) two proceedings were involved and argued at the same time, seeking the construction of the Election Law. The first was against the board of county and city canvassers of the city and county of New York, asking for a peremptory writ of mandamus, requiring them to summon the election inspectors of eight election districts in the 19th assembly district to correct their returns of the votes cast in such districts for the office of assemblyman and alderman, and directing the county canvassers to canvass the corrected returns. This proceeding was taken under the provisions of the Election Law to have the inspectors make a true statement. (§ 132.) The second proceeding, and the one pertinent at this time, is in aid of the first and asks for a peremptory writ of mandamus, requiring the inspectors of election in the districts named to convene and make correct returns of the votes cast in such district for said office, and directing the county canvassers to canvass the corrected returns.
The court stated in regard to this second proceeding as *Page 190 follows: "The theory of this latter proceeding is that, inasmuch as the inspectors have through error or otherwise made a false return contrary to their duties under the law, the court must intervene and authorize and, if need be, compel them to make a true return. This is wholly independent of the Election Law itself, and rests upon the fundamental and elemental principle that every public officer can be compelled by the court to perform the duties pertaining to his office. (People ex rel.Wooster v. Maher, 141 N.Y. 330, 336.) In each of these proceedings the facts and the question of law are identical. It appears that the tally sheets required by the Election Law to be kept as an official contemporaneous record of the count show that in the election districts concerned the petitioners Stewart and Okie received a certain number of votes respectively for member of assembly and member of the board of aldermen, while under the returns of the election district inspectors they received respectively less number of votes, the result being to elect the opposing candidates, Weil and Gregan, respectively, as member of assembly and member of the board of aldermen.
"The question presented by these appeals is whether there is any remedy for the petitioners upon such a state of facts. The main position of the respondents is that the tally sheet, by the terms of the law itself, is made the best and highest evidence of the canvass of the votes, and the so-called original statement or return by the inspectors is an abstract or summary of the facts and data contained in the tally sheet, and only a ministerial act made after the canvass is completed."
It is true that the precise question presented in the case from which quotation is made is not involved in the present proceeding, as it was there claimed that a variation between the tally sheet and the original statement or return made by the inspectors, permitted and required the inspectors to make the latter conform to the former. In the case at bar the tally sheet is attacked and in order to correct it resort must be had to a recount. A situation is presented clearly anticipated by the legislature. In the case before us we have a tally sheet *Page 191 made out in disregard of the provisions of the statute, in which the defeated candidate is credited with only eleven votes in election district No. 4, written therein in an illegal manner over an apparent erasure. In my opinion the Election Law was intended to reach, in a summary manner, just such cases as are disclosed in Matter of Stewart (supra) and in this case.
The Election Law was drawn with great care as to details, and the legislature evidently sought to throw around the voters of the state every safeguard which would permit them to deposit their ballots in secrecy, to have them canvassed accurately and honestly and to preserve the evidence for a period of six months both within and without the ballot boxes.
In Matter of Stewart (supra) we pointed out the great importance of the tally sheet in the canvass of the votes under the statute and any subsequent examination of the same. We further quote from the above case (p. 553): "The appellants urge that the language of section 131 of the law, properly construed, shows that the tally sheets do not control the returns, but that the statement of the inspectors is the basis upon which the board of county canvassers must act. It reads, in part, as follows: `At such first meeting' (of the board of county canvassers), `or as soon as an original statement of the result of the canvass of the votes cast in such election in every election district of the county shall be produced before such board, or a copy thereof, in case the original cannot be produced, the board shall, from such original statements and certified copies, and the sealed packages of void and protested ballots, proceed to canvass the votes cast in such county at such election.' It is doubtless true that this section contemplates that the board of county canvassers shall act upon the inspectors' statements without recourse to the tally sheets when the statements are unchallenged as to their accuracy, but to hold that the statements of the inspectors are the best evidence of the final result of the election, in case they are attacked for mistake or fraud, would be to render useless the contemporaneous self-proving record of the canvass already discussed. *Page 192
"The tally sheet is made in the presence of officials and watchers as the canvass proceeds, the result it records as to each office is separately approved and certified by the inspectors to the police headquarters and publicly announced in the polling place.
"To hold that such a document is inferior as evidence to the ministerial statement of the inspectors made after the canvass is completed is to defeat the effort made by the legislature to protect the canvass of the votes so that the recorded will of the people may not be thwarted by the errors or frauds of the inspectors of election. * * *
"We are of opinion that the learned counsel for the appellants is in error when he states in his brief that there is no provision in the Election Law for correction of an erroneous record or mistake made and recorded in a tally sheet. If the tally sheet is attacked as being carelessly or fraudulently kept so that there is no reliable contemporaneous record of the canvass of the votes, it is the obvious intention of the statutethat the boxes of voted ballots preserved for six months undersection 111 shall be opened and examined under the order of theSupreme Court, or a justice thereof, in order to determine theactual vote cast."
If the election officers wilfully or carelessly disregard the mandatory provisions of the Election Law, a party injured may resort to the common-law writ of mandamus, as was pointed out inMatter of Stewart (supra) to compel obedience and secure a recount.
This construction of the Election Law has been held in many cases in the lower courts. A few of them are Matter of Larkin (46 App. Div. 366); People ex rel. Maxim v. Ward (62 App. Div. 531) ; Matter of Stiles (69 App. Div. 589).
Inspectors of election are mere ministerial officers, and a peremptory writ of mandamus will issue to compel them to sign a return. (People ex rel. Stapleton v. Bell, 119 N.Y. 175.)
With the boxes opened it is a mere question of arithmetic to ascertain the result with absolute accuracy. No discretion is *Page 193 possible. No decision of a question of fact is required and nothing but the purest ministerial duty is to be performed. When it properly appears that this ministerial duty has not been accurately discharged, and that the ballots have not been counted in the manner required by law, or if it appears that they have not been counted as they were cast, whether through fraud, ignorance or accident, the court has power to command the election officers to reassemble and perform the duty which they failed to discharge, by recounting the ballots, and in doing so to observe the safeguards which the statute casts around the process. This evidently was the primary object of the legislature in enacting that the ballots should be preserved. With the new evidence now attainable for the first time the opportunity for fraud or mistake is reduced to a minimum, provided the ballots when preserved may be promptly recounted in a proper case. No statute is needed to expand the common law so as to meet the new situation created by the preservation of the ballots, for its flexibility and its ability to grasp new conditions has always been its strength and pride. When it finds a ministerial duty not done it commands that it be done. When it is established that ballots were not counted or verified by all of the inspectors it is proof that they were not counted legally, and, hence, according to the theory of the law not counted at all. A count by all the inspectors is not satisfied by a count by part. The ballots have not been counted unless all the inspectors counted personally, or personally verified every ballot. If it was established that one inspector did all the work while the others were not present, could it be reasonably contended that mandamus would not issue to compel the inspectors to reassemble and do their duty? Yet the case supposed is not far removed from a count by a part of the officers without verification by the others as required by law. Such a count is not a count, because all who are required to did not unite in making it. This fact alone would compel the writ to be issued. All of the inspectors are required to count, or one to count and the others to verify, and yet this was not done. *Page 194
The inspectors failed to do their duty and they should be required to come together and observe the commands of the statute by each counting or verifying all of the ballots. This is what the writ required. The novelty of requiring a recount by mandamus is owing to the fact that never before could a recount be had. When the legislature ordered the ballots preserved they opened the door to the writ and invited it to enter. The statute makes it possible for the first time for the court to order the election officers to recount and observe the law in so doing. For the first time they can be compelled to do their duty. The writ cannot be issued by the judges authorized to order the ballot boxes to be opened, but only by the Supreme Court, so that the danger of abuse is improbable. The risk is no greater than any citizen may have to run with reference to his life, liberty or property. Our decision in the Stewart Case (supra) establishes every principle required to affirm the order we are now considering.
It is argued that if a recount and recanvass could be ordered great delay and inconvenience might result from so construing the Election Law as to permit the examination, after the official term had begun, of a candidate whose title to office is attacked.
The case at bar is a very good illustration of how expeditiously the Election Law could be administered. The application for the writ was made as alleged within twenty days after the election, thus recognizing the fact that as the ballots are only to be preserved for a period of six months the law contemplates that any attack upon the accuracy or good faith of the original canvass and count of the votes should be promptly prosecuted. The delay caused in the case before us is due wholly to the action of the defendants, who have exercised, of course properly, their right of appeal rather than proceed with a recount, which would have speedily settled the question whether the election officers, acting ministerially, had performed their full duty under the provisions of the law. No question of discretion is involved.
The disposition made of this case in the courts below was *Page 195 right, and the order appealed from should be affirmed, with costs.
GRAY, O'BRIEN, WERNER, JJ. (and HAIGHT, J., in memorandum), concur with PARKER, Ch. J.; VANN, J., concurs with BARTLETT, J.
Order reversed, etc.