I dissent from the judgment in this case.
At the November election, there were cast in nine election districts, embraced within the towns of Camillus, Tully, Elbridge and Clay, in the county of Onondaga, 1,252 official ballots for Rufus T. Peck, the Republican candidate for senator in the 25th senatorial district. It is conceded that these ballots were cast by qualified electors, entitled to vote in the election districts in which they respectively voted; that the ballots were delivered to the electors by the inspectors of election of the election district in which the ballots were cast, and were voted in the usual way, and regularly deposited in the box by the inspectors without challenge or objection.
By the judgment in this case, the 1,252 votes mentioned are declared to be void, and the board of county canvassers are required to reject them in making their returns. The judgment proceeds on the sole ground that the printed indorsement on the ballots did not state the true number of the election district in which they were voted. The exact imperfection will more clearly appear by referring to a single case. The town of Camillus is divided into two election districts. In the first election district, 143 ballots were cast for Rufus T. Peck, for senator, with the printed indorsement "Official Ballot for Second District Poll, Town of Camillus, November 3, 1891," followed by a facsimile of the signature of the county clerk of Onondaga county. In the second election district a similar number of ballots were cast for Rufus T. *Page 434 Peck, for senator, indorsed "Official Ballot for First District Poll, Town of Camillus, November 3, 1891," followed by the signature of the county clerk, as in the other case. The substance of the matter is that the ballots prepared and intended to be used in the second election district of Camillus, were used in the first election district, and conversely, the ballots prepared and intended for the first election district, were used in the second district. The ballots in both districts were identical except in the number of the election district indorsed thereon. It does not appear that the fact that the ballots were indorsed with the wrong number of the election district, was discovered by the inspectors, the voters, or by-standers, or was in any way called to their attention on the day of election.
The facts in regard to the ballots cast in the other towns are the same as those in respect to the ballots in the town of Camillus.
Counting the 1,252 ballots for Rufus T. Peck, he was elected senator. Rejecting them, John A. Nichols will receive the certificate. The judgment of the court results in this: The candidate who received a minority of the votes of the qualified electors in the 25th senatorial district is declared elected, and the candidate who received a majority of such votes is deprived of his office.
The explanation of the mistake which has produced the present complication is simple. The Ballot Law imposes upon the county clerk of each county the duty, after nominations by political parties, or by the requisite number of citizens, have been made and certified, to prepare and print ballots for each election district in the county, in number twice as many of each kind as there were persons who voted or were registered in the district at the last preceding election. It is also directed that on the back of each ballot shall be printed the words "Official Ballot," and also the number of the polling-district for which it was prepared, the date of the election and a fac simile of the signature of the county clerk.
The ballots for the county of Onondaga were prepared by the county clerk, and printed and indorsed in exact conformity *Page 435 with the statute, and for each election district were printed the proper number, indorsed with the number of the election district for which they were intended. The duty of distributing the ballots so that the proper ballots shall reach the inspectors of the several election districts is placed upon the clerk of the county, and the clerks of towns and cities, each performing a separate part of the service. It is the duty of the county clerk to place the ballots of each kind in separate sealed packages, and mark on the outside of each package the polling-place for which it is intended, and the number of ballots enclosed. He is to cause these packages to be delivered to the clerks of the proper towns and cities within his county on Saturday before election, and take receipts therefor. The clerk to whom they are delivered is required to retain the packages unopened until the morning of election day, and at the opening of the polls in each election district to deliver the sealed packages to the inspectors of election of the district for which the packages are marked, and take their receipts.
By mistake or inadvertence of the county clerk of Onondaga county, or of his subordinates, the package of Republican ballots, prepared for one election district, were marked on the outside with the number of another district in the same town. For example, in the case of the town of Camillus, the ballots indorsed "First District Poll" were marked on the outside of the package, "Second District Poll," and those prepared for the second election district were wrongly marked on the outside of the package, "First District Poll."
I have characterized the action of the county clerk, or of his subordinates, as a mistake or inadvertence. The moving papers contain, it is true, some general allegations that this misplacing of the ballots was designed, and done with a fraudulent intent. This is denied in the opposing affidavits, and there is nothing in the circumstances to justify a suspicion that the ballots were intentionally misplaced.
But it is sufficient to say that by the express written stipulation of the parties, the charge of fraud or collusion in the moving affidavits is waived. If this issue had been insisted *Page 436 upon, and the fact was material, the peremptory writ could not be upheld, and the proceeding would necessarily fail, since it is settled that a peremptory mandamus cannot issue in the first instance, where a material fact is put in issue, but in that case the moving party will be put to his alternative writ, so that the other party may have an opportunity to try the issue presented.
It is said that there are nearly 200 election districts in the county of Onondaga. There were four tickets in nomination, and for 200 election districts 800 separate packages would be required.
The fault committed in the county clerk's office was not in the preparation or indorsement of the ballots, but in their distribution only.
The judgment of the court that the 1,252 ballots are void and cannot be reckoned in canvassing the vote for senator, is placed upon the clause in section 31 of the Ballot Law, which declares that "No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with section twenty-one of this act." Section 31 regulates and defines the duties of inspectors of election in canvassing votes, and the question is whether the clause quoted applies to the votes now in controversy. In my judgment the construction placed upon this clause by the majority of the court proceeds upon a plain misconception of its meaning. It was a leading purpose of the Ballot Law to prevent the use by voters at election of unofficial ballots. The whole machinery of the statute has this object in view. The statute prescribes in great detail how nominations for office shall be made and authenticated. It does not seek to control the free action of political parties in nominating candidates for public office. Nor does it prevent any voter from voting for any person he may choose to vote for, whether he has been regularly put in nomination or not.
The statute does require, however, that in all cases except those mentioned in section 21, the voter shall use the official ballot in exercising the right of suffrage. He may vote for *Page 437 any or none of the candidates whose names are on the official ballot, or substitute other names in whole or in part for those printed thereon. But when he desires to vote for persons not on the printed list, his purpose can only be made effectual through the use of the official ballot. He may write or paste upon the official ballot the name of any person for whom he desires to vote. If pasters are used, they must be used on the official ballot and not otherwise. The voter is not permitted to prepare his own ballot upon a paper other than the official ballot, except in the cases mentioned in section 21. The intent of the legislature to prevent the use of any other than official ballots is plainly apparent from the whole scheme of the Ballot Law. Bearing this in view, the meaning and application of the clause in section 31, above quoted, is very plain. In an election conducted in accordance with law, only two descriptions of ballots could lawfully get into the ballot-box, viz.: Official ballots and such unofficial ballots as are permitted in the contingencies specified in section 21.
If in canvassing the votes unofficial ballots are found, not coming within the class of unofficial ballots specified in that section, the conclusion is inevitable that they came there by fraud or mistake. It was to meet this situation that the clause in section 31 was inserted: "No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with section twenty-one of this act." The meaning is the same as if the section read: "No unofficial ballot shall be counted, except such as are voted in accordance with section twenty-one of this act." That the 1,252 ballots in question were official ballots cannot be successfully controverted. They were prepared and printed as official ballots, indorsed as official ballots, distributed as official ballots, and voted as official ballots. No one could mistake their identity as official ballots. The most that can be said is, that as they were not the ballots designed to be used in the particular election district in which they were voted, and had on them the number of another election district, they were as to the poll where used, imperfect ballots. But this did not take *Page 438 from them the character of official ballots, and this is admitted in the prevailing opinion. The 31st section only excludes the counting of ballots that have not the "printed official indorsement." Those ballots had the "printed official indorsement" of the proper officer. By mistake in distribution the ballots went to the wrong district. The statute does not put it in the power of inspectors to reject from the count ballots authenticated as official ballots, because they have been voted in another district than that for which they are prepared. There is no distinction in the character of the ballots prepared for one district from those prepared for another. The unsubstantial character of the objection to the ballots in question strikingly appears when the object of requiring the number of the election district to be printed on the ballot is considered. The law in order to secure the preparation and distribution of an adequate number of ballots, for the use of electors, requires the county clerk to prepare and print for each election district a number of ballots measured by the number of persons who voted or were registered in the district at the last preceding election. The provision that the number of the election district shall be indorsed on the ballots, was inserted as a safeguard against a mistake by the county clerk in preparing the requisite number of ballots, or in their distribution. The provision that the ballots should have indorsed thereon the number of the election district was not intended as a means of identifying them as official ballots. This was provided for by other indications which were certain and unequivocal.
The conclusion I have reached as to the construction of section 31, is reinforced by other considerations. By the Ballot Law the state assumes the duty of providing official ballots. The voter has no right to interfere either in their printing or distribution. In distributing the ballots the state through designated officials commits an error and ballots designed for one district are sent to another. By reason of this error it is held that the voter who uses the ballot furnished by the state, is deprived of the right to have his vote counted. If the construction of section 31 adopted by the majority of the court is *Page 439 correct, it would deserve serious consideration whether the provision in question can stand consistently with the Constitution, which secures to every qualified voter the right of suffrage.
But passing this point, it is to be observed that under the Ballot Law the voter is practically compelled to use the official ballot furnished at the polls. The 24th section, after directing that at the opening of the polls the inspectors shall open the packages containing the ballots and place them in charge of the ballot clerks, proceeds: "The ballot clerks shall thereupon deliver to the voter, and the voter shall receive and take with him into the booth or compartment one of each kind of ballots, which shall have been furnished for use at such polling place." The 25th section declares that: "On receiving his ballots the voter shall forthwith and without leaving the inclosed space, retire alone to one of the voting booths or compartments so provided, and shall prepare his ballots." He may attach a paster ballot to the official ballot, or write thereon the name of any person for whom he desires to vote. But whatever change he makes, must be indicated on the official ballot.
Upon the question of legislative intent, it is conceivable that it was the intention of the legislature in enacting section 31, to place upon the voter the responsibility of ascertaining whether an official ballot delivered to him corresponds in every particular, in form, size and indorsement, with the description in the statute at the peril, in case of misjudgment, of a forfeiture of his vote. The legislature must be supposed to have known that the great majority of voters are plain men, who would not be familiar with the details of a complicated statute. They come to the polls without any vote prepared. The law obliges them to receive the ballot furnished them by the election officers, and upon that to indicate the changes desired. The misstating on the ballot of the proper number of the election district would not be likely to attract their attention, and in the case in question it was known neither to the inspectors nor the voters. *Page 440
Assuming that section 31 is capable of two constructions, one preserving the right of the voter, and the other forfeiting it, can it be doubtful which construction ought to prevail? Shall the right be sacrificed, or shall the statute be construed so as to uphold and maintain the right? The question suggests its answer.
The conditions under which by section 21 the voter is authorized to use an unofficial ballot did not exist. This is insisted upon at length in the brief of the counsel for the relator. It emphasizes the helplessness of the voter, and the moral coercion under which he was placed, to use, if he voted at all, the official ballot furnished.
The point upon which the most stress is laid in the prevailing opinion is that the wrong number of the election district indorsed on the ballots afforded inspectors and by-standers a means of ascertaining how the voter voted. That the ballots were official ballots has already been shown. If they were not official ballots, then the consequence would necessarily follow that if all the ballots voted in any election district had been of the same character the whole vote would have to be rejected, irrespective of the question of identification. In the case supposed of ballots, all of which were affected with the same imperfection, there could be no identification of a particular vote. The misnumbering of the election district happened to be on the Republican ballots only. If this fact had been known, then the use by a voter of that ballot would be some indication how he voted. The uncertainty would arise from the fact that the voter might have attached a paster ballot, or written upon the ballot the names of persons other than those printed thereon. It is doubtless true that it was one of the purposes of the election law to secure more perfectly than theretofore the secrecy of the ballot. To attain this end the Ballot Law contains special provisions. By the 29th section inspectors of election are prohibited from depositing in the ballot-box "any ballot that is torn or has any other distinguishing mark on the outside thereof." The wrong number of the election district printed on those ballots, it is said, was a distinguishing *Page 441 mark within this prohibition, and that they ought not for that reason to have been received or deposited in the ballot-box by the inspectors. But they were in fact received and deposited. If these ballots could have been treated by the inspectors of election as marked ballots they were not so treated, and that subject under the arrangements of the statute has passed beyond the power of the courts to review.
Section 31 makes special provision for raising and investigating the question of marked ballots. If during the canvass of the votes, or immediately after its completion, any inspector or watcher declares his belief that any particular ballot has been written upon, or marked "with intent that the same may be identified," it is made the duty of the inspectors to write their names on the back thereof and attach it to their certificates with a specific statement of the grounds upon which its validity is questioned. Thereafter and within thirty days after the filing of a certificate declaring the result of the election, the matter may be inquired into by a writ of mandamus, issued out of the Supreme Court, against the board of canvassers or officers, "by whom the ballots were counted," and the section then provides for the trial and determination of the question of their validity.
The 1,252 ballots in question were not challenged as marked ballots, were not returned as marked ballots, and they were burned by the inspectors after the completion of the canvass on the night of election. The present proceeding is not taken, and could not have been taken, under the provisions of section 31, relating to marked ballots, and this is admitted by the counsel for the relator. The whole question comes back to the one point, of the meaning of the clause in section 31, which declares that "No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act." The conclusion of the majority of the court as to the construction of this clause is sought to be strengthened by reference to section 29, which provides that "No inspector shall deposit in a ballot-box, or permit any other person to *Page 442 deposit in a ballot box, on election day, any ballot which is not properly indorsed and numbered, except in the cases provided in section twenty-one of this act, nor shall any inspector of election deposit in a ballot-box, or permit any other person to deposit therein, on election day, any ballot that is torn or has any other distinguishing mark on the outside thereof." It is said that the ballots in question were not properly indorsed, and that the inspectors should have refused to receive or deposit them, and that they come within the description of ballots which the statute in section 31 declares "shall not be counted." This argument leads to most incongruous and absurd results. It will be noticed that the prohibition in section 29, against depositing certain ballots, applies to ballots not properly indorsed, and also to marked ballots. But if marked ballots are received and deposited in the box, they are nevertheless to be counted. The declaration is (§ 31): "Such ballots shall be counted in estimating the result of an election." The court, under section 31, may pass upon the validity of such ballots, in a judicial proceeding authorized by the section. But the court, on such inquiry, cannot hold them invalid, unless it finds as a matter of fact that the mark was placed on the ballot by the voter or by any other person to his knowledge, "with intent that such ballot shall afterwards be identified as the one voted by him." But by the construction placed by the majority of the court on the clause in section 31 first quoted, if official ballots, not indorsed in exact conformity with the statute, are found in the box, they are to be rejected peremptorily, although the ballots were furnished by the public officials and were voted without knowledge of any imperfection therein and without any intent to violate the statute. It may be safely assumed that the legislature never intended to make such a distinction between the two cases.
Cases have been cited from the courts of other states, holding that where election laws prescribe that ballots of a certain description shall not be counted, the statute must be followed. In the view I take of the meaning of our statute, these *Page 443 decisions are irrelevant to the discussion. The statute, does not prohibit the counting of the ballots in question. The mistake in the number of the election district indorsed on the ballots may to limited extent have enabled bystanders to judge how the elector voted. But this was the result of an accidental and unforeseen error in the distribution of the ballots, for which the elector was in no way responsible. To reject these votes on the ground that the policy of a secret ballot was thereby invaded, is subordinating the right of suffrage to an unanticipated incident, not contemplated or provided for by the legislature. It does not mitigate the injustice of the judgment in this case to say that it is the majority of votes, as ascertained in the manner provided by law, by which elections are to be determined. This rule, which no one disputes, does not absolve courts from the duty to seek a construction of the statute which will prevent a forfeiture of the highest political right possessed by the citizen under the Constitution, when, as in this case, he has been guilty of no wrong, and the fault was committed by the officers of the state. This decision disregards the rule, hoary with age, that penal provisions in statutes are to be strictly construed against the state and in favor of the citizen. Statutes in derogation of liberty or property are subject alike to the operation of this benignant principle. Is it less important to protect the right of the citizen in the exercise of the suffrage?
This decision defeats the will of the majority and subverts, in the particular case, the foundation principle of republican government, and this upon a narrow, technical, harsh and unnecessary construction of the law. In place of protecting the right of suffrage, it destroys it. It takes hold of an unforeseen and accidental incident and builds upon that a forfeiture by inference and construction.
It opens the way for frauds upon the suffrage, wide reaching in their effects. In 1884, the electoral vote of this state was cast by electors who received a plurality of votes less than the number rejected by this decision. Corrupt officials can, *Page 444 with reasonable safety, tamper with the distribution of ballots and allege mistake, which it will be hard to disprove.
Having a firm conviction that this judgment is wrong, I cannot do otherwise than record my dissent.