I dissent from the conclusions arrived at by the majority of my brethren in this case, but do not desire to express my views at any great length. The question, though, is of so much public importance that it seems incumbent upon me to give some of the reasons which compel my dissent.
The facts are undisputed. Mr. Rufus T. Peck received more votes than any other candidate for senator in the 25th senatorial district, and a plurality of three hundred and eighty votes over the next highest candidate for that office. By the judgment of this court this plurality is stricken out, and one of eight hundred and seventy is given to the relator. The ballots of twelve hundred and fifty-two electors of that senatorial district, which were deposited on the day of election for Mr. Peck, without the slightest objection in any of the election districts, are to be cast aside in one mass. The reason alleged is that a mistake was made in the distribution of the Republican official ballots, by which those bearing the indorsement of one election district were sent to another election district in the same town, and vice versa, so that, for instance, the indorsement on the ballots actually voted in the first election district of the town of Camillus bore the number of the second election district in the same town, while those for the second bore that of the first. The indorsement complied in all respects with the law, unless this error made the ballot worthless and rendered it the duty of the inspectors of election to refuse to permit it to be deposited in the box, or, if deposited, to be counted. The ballots were voted in fact without any objection or challenge in a single instance by any human being, and were counted by the inspectors of election without a protest from any source. No one then supposed they were illegal or unofficial ballots. The county canvassers are now, by the judgment *Page 445 of this court, to be directed to disregard every one of them, and the result will be to reverse the action of the electors in that senatorial district so far as this court can do it, and to cause a certificate of election to issue to one who in fact never was elected by a plurality of votes.
It is not claimed that any but qualified voters voted at the election in this senatorial district, and it was conducted quietly, honestly and fairly, so far as these papers disclose, without a thought of the danger impending over such election by a slight mistake in the distribution of these ballots in regard to the commission of which not one of the men who voted them, so far as appears by the record, was in the least degree responsible. The mere statement of the proposition to reverse the result of an election under such circumstances and for such a cause is calculated to create in most minds a feeling that, if actually consummated, gross injustice would thereby be done and that no fair reading of any Ballot Law would permit its consummation. To utterly disfranchise hundreds of innocent legal voters because the employe or messenger of some public officer made a mistake like the one in question, seems to me to work a burlesque on the Ballot Act and its construction.
Where any particular construction which is given to an act leads to gross injustice or absurdity, it may generally be said that there is fault in the construction and that such an end was never intended or suspected by the framers of the act. A construction of the kind placed upon the act here under discussion certainly tends to bring the law itself into contempt. This I think is a misfortune, for I believe the purpose of the act to be most commendable, and if it received a reasonable interpretation its operation would be beneficent.
The construction of this act by the majority of the court is as I believe wholly unnecessary, and (I say it with great respect) unreasonable. As to the proper meaning to be given these particular sections of the Ballot Act, I concur substantially in the views expressed by ANDREWS, J. The general object and purpose of the act may be learned from its title, being to "Promote the independence of voters at public elections, *Page 446 enforce the secrecy of the ballot and provide for the printing and distribution of ballots at public expense."
To these ends official ballots are to be provided by a public officer with whom the names of all parties nominated for office are to be filed, and this officer is to see to the printing of such ballots. For the purpose of identifying the ballots as official, they are to be printed in a uniform way upon the same kind of paper and on the back of each ballot is to be printed in prescribed type the words "Official ballot for ____," and after the word "for" shall follow the designation of the polling place for which the ballot is prepared, the date of the election and afac simile of the signature of the county clerk, and there is to be no caption or indorsement upon the ballot other than as above. These official ballots are to be distributed by the county clerk to the town and city clerks and by them on the day of election to the various election polls in the town and city. If they are not furnished, then under the provisions of the act unofficial ballots may be used. If the official ballots are furnished they alone can be used and no unofficial ballot can be deposited in the box or counted by the inspectors.
It seems to me plain that official ballots were furnished the various election districts in question here, and that they did not cease to be such official ballots because of the mistake described. The argument for the respondent is that these ballots were "not properly indorsed," and hence should not be received or counted within section 29. That section does not, in my judgment, embrace such a case. The ballot was "properly indorsed" when printed, for it had on nothing but the words and figures provided for by statute; it had been printed at the public expense by the proper public officer, or under his direction; it had on the back of the ballot a fac simile of the signature of the county clerk, and it had been sent out for distribution according to the provisions of the statute, and had been brought to the polls by or under the direction of the town clerks respectively. Hence, when they were thus delivered, they still bore the characteristics of the official ballot, and were such ballots. The statute means that when official ballots are thus *Page 447 provided, no unofficial ballot can be cast, and if cast, shall not be counted. These official ballots did not become unofficial by the accident. It is said that if this be the correct interpretation of the act, then a way has been found by which to positively identify the kind of ballot each voter casts and the law is in this way rendered wholly nugatory. This, however, is not, I think, the inevitable result. In the first place, we are bound to assume that public officers will, as an usual thing, honestly perform their official duties. Government could not be carried on were we to proceed on the assumption that every public officer is a criminal in disguise, and ready at the first opportunity to cheat, steal or otherwise violate the law. Some reliance must necessarily be placed on average official integrity and intelligence. It would be highly improbable that any official would intentionally and corruptly perform the act which forms the mistake in this case. It would be a crime on the part of such official, and one of so highly hazardous a nature that few men who had been elected to responsible public offices could be found to run the risk of punishment, especially when the purpose to be subserved would be, in most cases, of so purely impersonal a nature. The officer also acts under the responsibility of his official oath and with a knowledge that a willful violation of the statute subjects him to the danger of conviction for a felony.
But if all these safeguards are insufficient, not alone to prevent a mistake, but are even insufficient to prevent a willful violation of the act, when the object is to so mark an otherwise official ballot that it may be known whenever such ballot is voted, yet the act in such case provides for the proper proceeding. Under section 31, an inspector of election or watcher, during the canvass or immediately thereafter, may declare his belief that any ballot has been written upon, ormarked in any way, with the intent that it may be identified, and then the inspectors are to write their names on it and it must be attached to the original certificate, and go to the county canvassers, where a means is provided for ascertaining the facts judicially. But the ballots are in the meantime counted.
The only possible ground for giving any importance to the *Page 448 mistake in the distribution of ballots which occurred here is that as a result of the mistake every voter who voted one of these ballots was known and he was known by reason of this distinguishing mark on his ballot. Those who voted these ballots might very well have had the opportunity of placing pasters inside them and have in fact voted in a way opposite to that in which the outside of their ballots indicated and in this way the mark on the ballot would not necessarily show the way in which the elector voted.
However, the mark on the ballot in this case was important for this purpose or it was important for nothing. It was only important as a marked ballot, by which it might be determined what kind of a ballot an elector voted.
The consequence of voting a marked ballot is provided for under the section (31) above spoken of. And if it were marked pursuant to any scheme of the officials who were concerned in its distribution, such fact could be made to appear upon the judicial investigation. But a mere inadvertent mistake of an officer ought not to work such an extreme penalty as disfranchisement on innocent electors. There is no reason or justification, as it seems to me, to be found in the object or purpose of this act for throwing out ballots voted as were these ballots.
There is another view in which the act may be considered. The directions not to count the ballots or permit them to be deposited in the box are given to the inspectors of election alone. If they violate the provisions of the act they lay themselves open to prosecution criminally. If they do count ballots which they ought not to and so return a result which includes their counting, the board of county canvassers must canvass them, for such board is only a ministerial body and simply foots up the aggregate result of the whole vote and declares the same. The state board is of the same nature.
In this case the court compels the board of county canvassers to throw out votes actually received and counted by the inspectors without challenge or protest, and thus a different result is arrived at than the facts warrant. This the board *Page 449 has no right to do. It should be left for judicial inquiry, where facts and motives may be dealt with.
I have read this statute with all the care and attention I could bestow upon it with a desire to construe it in the light of its declared purposes and with an earnest wish to effect and carry them out, but I am utterly unable to see how this can be done by the construction put upon it by a majority of my brethren. On the contrary, it seems plain to me that those purposes are endangered if not frustrated by a construction which in my judgment is unreasonable and unnecessary and by which thousands of perfectly innocent electors may annually be disfranchised without fault on their part, and the will of the majority be thus set at naught.
For these reasons I am compelled to dissent from the judgment directed by the court in this case.
RUGER, Ch. J., EARL, GRAY and O'BRIEN, JJ., concur for affirmance.
ANDREWS, FINCH and PECKHAM, JJ., dissent.
Orders affirmed.