I dissent from the decision advised by the chief judge and while I vote for the reversal of the judgment, it is upon the ground that the return of the board of canvassers in question was conclusive under the present election law. According to that return, the defendant was elected county treasurer of Chemung county by the greatest number of votes cast. There is no charge, nor pretense, of any fraud, or of fraudulent practices, by which that result was effected. The claim is, in substance, that, at the close of the voting, the voting machines in three out of the twenty-eight election districts of the city of Elmira, as to some candidates, had shown peculiar variations in the registration of votes and that, in subsequent tests, they appeared to work defectively in registering and in counting votes cast. It was conceded that they had not been tampered with; but because the subsequent tests, ordered by the court and made upon the trial, showed that they failed, at times, to register votes, which were attempted to be cast by operating the mechanical levers, or appliances, the relator claims the right to supplement their supposed defectiveness in operation by the testimony of witnesses as to how they did vote in those particular election districts. The testimony of a large number of witnesses was received to show that they had voted for the relator and, if competent to invalidate the official return, the evidence showed that more votes had been attempted to be *Page 112 cast for him than the counting dials of the machines had registered. That the evidence of witnesses as to how they voted at an election is admissible, upon the trial of an action to determine the right to the office of the person receiving a certificate of election, has been frequently held and the rule as it has been applied in the cases is not questioned. If the witness does not object to being compelled to testify as to how he cast his ballot, the objection is not available to any one else. But, while such a rule has its proper application in cases where the inquiry is into the qualifications of the electors to cast a vote, or where fraud has been practiced and is shown to have affected the result, as in the cases of People ex rel.Smith v. Pease, (27 N.Y. 45), and of People ex rel. Judson v. Thacher, (55 N.Y. 525), I think it is hardly applicable to a case like this. If the result of an election, held wholly, or in part, by the use of voting machines, as declared by the official return, is to be questioned and a new result attempted to be reached by the reception and counting of votes of electors in court, upon a trial, upon the sole ground that, in certain election districts, machines in use appeared, upon subsequent tests, to operate defectively, then we have a serious innovation upon our elective system and one calculated to produce most unsatisfactory consequences. The amendment of our State Constitution in 1894 permitted elections to be by ballot "or by such other method as may be prescribed by law, provided that secrecy in voting be preserved." (Art. II, § 5.) In 1901, (L. 1901, ch. 530), the legislature amended the Election Law of 1896 and authorized the adoption, "for use at elections of any kind of voting machine approved by the state board of voting machine commissioners, or the use of which has been specifically authorized by law; and thereupon such voting machine may be used at any or all elections held in such city * * * for voting, registering and counting votes cast at such elections" (Section 163). Sections 160, 161 and 162 provide for a board of voting machine commissioners; for their examination of voting machines; for the adoption thereof upon a report that they can safely be used by *Page 113 voters at elections, and for the requirements, which such machines must meet, in a construction permitting of a person's voting straight or "split" tickets, or in blank columns, and which prohibits, through a lock, or locks, any movement of the mechanism after the polls are closed. Section 162 prescribes that the machine "must permit voting in absolute secrecy." The municipal authorities followed the law and there is neither question of the legality of the election held in the municipal election districts through the use of voting machines, nor question of the absolute integrity of action of the election officers, through whom the results passed and were certified.
We have, therefore, a case of the lawful adoption by the community of voting machines for the use of voters; where an approved mechanism is availed of to secure honesty, secrecy and exactness in the casting, counting and return of votes cast. It must be clear that, in the use of these machines, certain effects are understood and certain results intended, namely: that, from their construction, a vote is not registered, unless the counting dials are moved; that whether the elector has voted depends upon that fact, inasmuch as the law requires, only, of the inspectors in canvassing that they shall return "the results as shown by the counter numbers", (section 178), and that, if an elector has attempted to vote, and, for any reason, his vote is not registered by the counting dial within the machine, he has not, in fact, voted. It must be borne in mind that we are dealing with a new system of voting, authorized by law, in which security against the frauds, or frailties, of mankind is aimed at and which seems to be nearly reached, as a fact. If they are to be considered as objectionable devices in the holding of elections, that consideration is for the legislature and not for the courts to act upon. I most seriously doubt the correctness of the statement that, under the novel method of voting authorized by the Constitution and the law, greater secrecy is not aimed at. I think it to be quite apparent that the legislature must have intended to secure the more absolute secrecy of action in voting, which the mechanical *Page 114 device offered. As the question presents itself to my mind, in holding that the official return of the canvassers should be accepted as conclusive, we simply follow the legislative intent. They are to take what they find recorded and counted upon the counting dials, when opened at the close of the polls. What the electors, who have entered the machine inclosure, have voted is a question to be determined by the results shown upon the dial plates. That votes of electors were not counted upon them may, it is true, have been due to machine defects; but, equally, it is true that it may have been due to the elector's mistake, or ignorance, or to his voluntary act. It does not follow that the electors, who testified upon the trial, had attempted to vote for the relator. Influences, or motives, may have determined them to abstain from voting for him, to which they allowed effect in the secrecy of the closet. At any rate, to require them, upon a complaint of the defective working of the machine, to testify what they intended to do, when the question is what they did, seems a dangerous precedent in cases free from fraud, or fraudulent practices. It seems to me to be equally immaterial, whether the failure of a voter to have his vote registered be due to a defective machine, or to a defective ballot. Under the system of voting by ballot, it may happen that the votes, which electors have attempted to cast, may not be counted, not because of any fraud, but by reason of their own mistakes, or of some defect in the ballots prepared for the election districts. In such a case, they are deprived of their share in the election; but for that there is no remedy. Upon the exercise of the elective franchise are imposed many conditions, which must be met before the elector's vote can be cast, or counted. Sacred as is the right of the citizen to vote, it is, under our system, not untrammelled. In People ex rel. Nichols v. Board of CountyCanvassers of Onondaga (129 N.Y. 395), the wrong indorsement of the Republican ballots in certain election districts resulted in their rejection, because they were marked, or defective, ballots, and failed to meet the requirement for the secrecy of the elector's vote under the provisions *Page 115 of the Ballot Reform Act. It was said in the opinion, if the law required the exclusion of the ballots, "that although it may deprive a portion of the citizens of the county of their right to be heard in the election of a clerk at one election, it is better that they should suffer this temporary privation than that the courts should habituate themselves to disregard or ignore the plain law of the land in order to provide for hard cases." (P. 412.) So in this case, where the method substituted for human agencies in the preparation, reception and counting of ballots was a mechanical instrument, contrived and adapted for those purposes, and the command of the statute is that the inspectors return the "result as shown by the counter numbers", the courts should give effect to the law and, there having been no fraud, should hold the return conclusive. They should not, because in instances, for some reason, as attributable to the elector's act, as to the defective working of the mechanism, disregard the official return and, on testimony of intentions, reverse the result. The elector, when asked as a witness to state, in open court, how he had intended, or attempted, to vote, may be influenced, then, by a desire to represent his personal, or political, convictions as to the relator's candidacy quite differently, than they were felt in the retirement of the voting booth. There is room for the admission of an elector's testimony with respect to how he voted or attempted to vote, at an election, in the investigation of his qualifications as an elector, or of any practices complained of on the part of the election officers; but that it should be admissible to change the result without any such facts of complaint, I do not believe. To say that the right to an elective office ought to depend upon the number of votes cast by the qualified electors may be true; but that does not meet the question in this case. That question is who, according to the arrangements, which the Constitution and the laws have provided for determining that question, received the greatest number of votes and was, therefore, elected to the office. The legislature has not left it an open question to be settled in the courts, at the instance of a defeated candidate, not complaining of any *Page 116 fraud, but only of the result; it has prescribed a method for determining the result, which, if availed of, minimizes the uncertainties of elections and mechanically declares a result.
In my opinion, the result as declared should be conclusive. I, therefore, vote for the reversal of the judgment appealed from and I advise that a judgment in favor of the defendant be entered upon the case as made at the trial, upon the ground that the defendant was legally elected as county treasurer for the county of Chemung, for the term of three years, commencing on January 1st, 1907.
HAIGHT, VANN and WILLARD BARTLETT, JJ., concur with CULLEN, Ch. J.; EDWARD T. BARTLETT and CHASE, JJ., concur with GRAY, J.
Judgment reversed, etc.