While I concur in the opinion delivered by my associate, Judge O'BRIEN, I have thought it proper to state in my own language the line of thought which has led me to the conclusions reached by a majority of the court.
I regard this case as one of primary importance, not so much perhaps from the effect that its decision may have upon the interest of the individuals engaged in the controversy or the temporary prospects of political parties, but from the permanent influence which it will exercise upon the cause of ballot reform, which has in recent years shown itself so strong in the regard of the people, and vindicated that favor by the success which has attended the enforcement of the reform legislation of 1890 and 1891.
It cannot be disputed but that in the initiation of the movement for ballot reform there was much difference of opinion in regard to the propriety of the laws proposed, and much fear expressed in respect to their operation, and I must confess that I was among those who regarded the result as doubtful *Page 415 and uncertain, and feared that their enforcement would be likely to impose a serious and dangerous restraint upon the exercise of the right of elective franchise by the citizen.
We have, however, now had two years of experience under these statutes, and it seems to me that many of those who originally opposed the law have become reconciled to its operations, and a great change has come over the popular mind in regard to its beneficial effects. I think that it will now be generally conceded that the influence of these laws, if fully and impartially enforced, will practically prevent bribery at elections and restrain the power of extraneous influence over the mind and conduct of the voter in the exercise of his political rights within healthy limits. Any decision, therefore, of this court which would tend to materially hamper the beneficial operation of these laws and relegate the question of ballot reform to its original position, will, I think, prove a serious misfortune to the country, and the source of great regret to every thoughtful and conscientious citizen.
I think that but few will dissent from these views or from the further proposition that any determination of the question before us which will prove an embarrassment to the cause of ballot reform should be most earnestly deprecated and avoided if the language of the statutes will permit of another result.
The issues involved in the present controversy, as presented on the argument, is the claim made on one side that these proceedings were on the part of the relator to change the political complexion of the senate of the state by forcing a candidate into an office to which he was not legally elected, and the assertion on the other that the candidate opposed to the relator, although having an apparent majority of the votes cast, secured that majority only by counting in his favor illegal ballots procured through intimidation and the exercise of unlawful influence over the minds and conduct of the voters at the polls. The question, therefore, which lies at the foundation of the controversy is who had a plurality of the legal ballots cast at the election in question, and as that question *Page 416 shall be determined by this court, will depend the ultimate decision of this appeal.
The facts, having been agreed upon by the parties, are simple and undisputed. The twenty-fifth senatorial district consists of the counties of Onondaga and Cortland, and contains a voting population of about forty thousand. The canvass of votes showed that Peck, the Republican candidate for senator, received in the county of Cortland a plurality of seven hundred and seventy over Nichols, his Democratic competitor, and in Onondaga county, Nichols received a plurality of three hundred and eighty-eight over Peck, thus showing an apparent plurality for Peck of three hundred and eighty-two votes. The total vote for Nichols in Onondaga county being fifteen thousand seven hundred and fifty-nine, and for Peck, fifteen thousand three hundred and eighty-one. Among the ballots thus counted for Peck were twelve hundred and fifty-two which were, when voted, indorsed with a number which did not correspond with the number of the district in which they were cast, or with the number which was indorsed upon all other ballots cast in the same district at that election. These obviously illegal indorsements were found only upon Republican ballots, and were made upon all of the ballots cast for Peck in the several districts named. These were the first and second of the towns of Clay, Camillus and Tully, respectively, and the first, second and third of the town of Elbridge, and being, as I infer, all of the election districts in the several towns named.
These facts appeared upon the face of the returns made to the county canvassers, and these votes were allowed to Peck by that board under the only canvass permitted to be made by it pursuant to the express requirement of an order of a Special Term of the Supreme Court.
No explanation is furnished by the papers as to how the transposition of ballots occurred, nor are any facts stated from which it can be conclusively inferred that it was innocently produced. On the contrary, in my judgment there is the strongest evidence in the case tending to show that they were *Page 417 designedly transposed. It is plainly inferable from the manner in which votes were required by statute to be prepared, printed and distributed by the county clerks to the several town clerks, that the transpositions occurred in the office of the county clerk. Thus he is required to prepare all ballots intended to be used in his county, to cause them to be printed, and when printed to be placed in separate packages properly marked for the respective towns and districts in which they are intended to be used, and to transmit them to the respective town clerks as early as the Saturday preceding the day of election for distribution to the inspectors. The distribution by the town clerk is required to be made of unopened packages, as they are directed, among the inspectors of the various districts in the town before the polls open on the morning of the election.
It is quite obvious, therefore, that the respective packages were put up in the county clerk's office, and addressed not only to the respective districts for which they were intended by the county clerk, but all those intended for a particular town were embraced in a single package addressed to the town clerk. These packages were all sent out duly addressed, and reached their respective intended destinations.
In the several election districts referred to, however, the inspectors of election, upon opening the packages addressed to them on the morning of election, discovered that the Republican ballots inclosed in the packages were all indorsed with an erroneous district number, while all other tickets contained in the same packages were properly indorsed.
No effort appears to have been made by the inspectors to correct this palpable violation of law, although within the limits of a small town it could apparently have been accomplished in a comparatively short period of time, by an exchange with the districts whose ballots had also been erroneously distributed. But the election was deliberately proceeded with, and the ballots cast in all of the towns and districts named were taken under circumstances which obviously exposed the political *Page 418 character of every Republican vote as notoriously as though it had been openly proclaimed by a herald at the polls.
It is strenuously urged by the appellant's counsel that these transpositions were inadvertently made. This contention is obviously immaterial. But I think there is little in the circumstances to render such a claim either plausible or probable. In preparing the packages the persons superintending the operations must have selected with care and accuracy the ballots prepared for the candidates of the Democratic, Prohibition and Socialistic parties, and correctly assigned them to the proper district. They must also then have selected the Republican ballots designed for the several towns having two districts and put those prepared for the first district into the package sent to the second, and those designed for the second district into the package sent to the first district. This could only have occurred by rejecting the package properly marked, and selecting another package obviously designed for another district. This was done in six districts and involves the happening of twelve simultaneous mistakes of a similar character, to produce the alleged inadvertent transposition of votes.
The work of transposing the votes of the town of Elbridge was a more complicated transaction and required some calculation to make it successful, as there were several districts to be affected. This, however, was done by sending to the first district those ballots designed for the third, to the second those designed for the first, and to the third those prepared for the second; and thus each district secured its full complement of votes, but they were each marked so as to advertise, when cast, the contents of the ballot.
It is quite significant also that this is the only county of the state in which such mistakes occurred, and that it occurred only with the ballots of a single one of the four parties whose ballots were handled by the officers charged with the duty of making the distribution of ballots. No explanation is made by the county clerk of the manner in which this result was effected, except by the affidavit of a subordinate in his office, who testifies substantially that he superintended the distribution *Page 419 of the ballots in the county clerk's office, and that if any mistakes were made they were inadvertently committed, and not with any intent to evade the provisions of the Ballot Reform Law. This is the statement of a mere opinion, and can have no legal effect upon the character of the transaction, except to show by the testimony of an implicated party that he did not intend to commit a criminal offense.
Such is the only explanation offered by the officers implicated to account for the apparent perpetration of a great crime, through which one political party was in nine election districts of the county enabled to disregard the wholesome restraints of the Ballot Reform Law, and reap the advantages to be derived therefrom.
That a crime was committed by some one having in charge the distribution of the ballots for the several towns referred to, cannot be the subject of reasonable doubt. Among those officers the duty of the county clerk is the most important. He is charged with the whole duty of preparing the ballots for printing, overseeing their publication, assigning the towns and districts to which they are to be sent, and effecting their proper distribution. The importance of a strict and conscientious performance of his duties cannot be overestimated, as any mistake or carelessness on his part is sure to involve the most serious consequences to the cause of good government and the administration of its laws. It is, therefore, that all of the duties to be performed by him are most carefully and minutely defined by the law, and it is especially provided by the act that "every public officer upon whom any duty is imposed by this act who violates his said duty, or who neglects or omits to performthe same, shall be deemed guilty of a misdemeanor," and subject to fine or imprisonment (§ 34, ch. 262, Laws of 1890, as amended), and any person who shall forge or falsely make the official indorsement of any ballot shall be deemed guilty of a felony (§ 32, ch. 262, Laws of 1890).
That these sections have been glaringly violated is made apparent by the conceded facts, and while the actual offender *Page 420 may not now be certainly pointed out, it will be desired by every candid and law-abiding citizen that the incoming legislature may by a thorough investigation ascertain the facts and detect and expose the guilty party.
It is claimed by the appellants that the political party whose ballots were thus transposed could have had no improper motive in effecting such transposition. It would seem to be a sufficient answer to this suggestion to say that the act does not regard the motives of those who violate the law by improperly indorsing ballots, but condemns the act and prescribes the punishment for its commission, whatever may have have been the cause or motive for its perpetration. It imperatively requires that every ballot cast (with an unimportant exception) shall be of the same shape, size and color and have the same indorsement. The purpose of the act seems to require that these provisions should be held to be mandatory, and that a disregard of them upon any pretense whatever should constitute a violation of the law, and cause a forfeiture of any benefits sought to be derived from such illegal ballots. The vigorous enforcement of these penalties constitutes the principal mode by which obedience to the law was expected to be secured. But let us look further at the motives which may reasonably be supposed to have actuated the minds of the parties charged with the duty of handling these ballots, by their unlawful manipulation.
It appears from the votes cast, that Mr. Nichols received a large Republican vote in Onondaga county. The court can take judicial notice of the facts appearing in the public records of the state. They show that Onondaga is a Republican county, and for a long series of years has given a plurality of votes for that party varying from two to four thousand votes at each election. At this election, however, it gave a considerable plurality for the Democratic candidate. It is, therefore, obvious that for some weeks preceding the election there must have been evidence of a popular current which threatened a defection from that party and consequent accessions of strength to the ranks of its opponent. *Page 421 What more efficient agency could have been adopted to arrest such a movement, than the publication of the fact that every person who deserted from his party in such an emergency would be watched and exposed to the various consequences which inevitably follow those who throw off their fealty to party obligations, and incur the hostility of their former political associates? Not only were the voters exposed to their influences, but the fact that their ballots were improperly indorsed, exposed them to the approaches of vicious and corrupt partizans, who might either by bribery or intimidation seek to influence their conduct.
It is evident that if such practices are permitted under the law, the purpose of the act to shield the voter from obnoxious supervision and observation while exercising the right of elective franchise is practically defeated. We are now brought to the crucial question presented by the situation, which is as to the disposition to be made by the canvassers, under the law, of the votes thus illegally cast.
The language of the act on this subject is plain and unambiguous, and furnishes a full and conclusive answer to the inquiry which no ingenuity can obscure or evade. The statute says that "No inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day any ballot which is not properly indorsed and numbered, except in the cases provided for 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." (§ 29, ch. 262 of Laws of 1890, as amended by the Laws of 1891.) And further, 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." (§ 31 of the amended act.)
No claim can be seriously made that the ballots in question were cast in accordance with section twenty-one of the act, and they, therefore, necessarily fall under the absolute and unqualified prohibition which is directed against the *Page 422 receiving or counting of such ballots, imposed by the quoted provisions.
The act provides that no ballots not properly indorsed shall be received, or if received, shall be counted. This result must necessarily follow the commission of the prohibited act, whatever may have been the ignorance or intention of the voter or any other person connected with the act of voting, for the canvassing officers are imperatively directed not to receive or count the improperly indorsed ballot. No investigation is required or permitted by the inspector into the motives of the voter or those who prepared the ballots for him; but without inquiry, upon the mere inspection of the ballot, the inspectors are required to take affirmative action rejecting it, and if for any reason that duty has been omitted at the polls, they are required to refrain thereafter from canvassing or counting such ballots.
It cannot, of course, be successfully contended that under the language of this statute any board of canvassers, before whom the facts lawfully come, and who are vested with the duty of canvassing votes had any authority in law to count these illegal ballots, and it was, therefore, practically decided in our deliberations, by a unanimous court, that unless some change was made in the language of the statute, these votes must be rejected.
Some of the members of the court are of the opinion that the statute may properly be read as though the word "unofficial" had been inserted in the quoted sentences before the word "ballot," wherever it occurs, so that the words of exclusion shall apply to unofficial ballots alone. This interpolation of a word is deemed to be justified by the alleged injustice which would otherwise be inflicted in this case by the disfranchisement of upwards of twelve hundred voters. The conclusive answer to this claim is the fact that the interpolation defeats the plainly implied intention of the law makers and destroys the sole beneficial purpose of the act. It is among the most primative rules of construction that the office of interpolation is to carry out the intention of the law makers *Page 423 and facilitate the accomplishment of the object. Any change, therefore, in the language of the statute which contravenes these principles is prohibited by the elementary rules of construction.
What was the obvious purpose of this statute? It is expressed in language that permits of no doubt as to its meaning, and is revealed not only by its title, but breathes in every line and word of its forty-six sections. The title declares it to be "An act to promote the independence of voters at public elections,enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense." The body of the act shows by manifold provisions that this purpose is to be accomplished only by the inviolability with which the conscience and intention of the voter is guarded while exercising the right of suffrage, from the observation and scrutiny of others. It cannot, therefore, be reasonably claimed that it was within the purpose of the law makers to permit a voter, whether casting an official or an unofficial ballot, to reveal at the polls in any manner or on any pretense whatever the character of the ballot which he proposes to cast.
Let us, therefore, consider the effect of the suggested construction of this statute. It plainly assumes to limit its application to unofficial ballots, and thereby to exempt from its operation all official ballots. Ballots by the law are designated as official and unofficial, and are expressly defined by various sections of the act. Those designated "unofficial" are described by section twenty-one of the act, and are ballots authorized to be printed by a town or city clerk only when the ballots required to be furnished by the county clerk have not been delivered, or after their delivery, have been lost or destroyed. In case such ballots are not furnished by the town or city clerk in time, or the supply of ballots become exhausted before the polls are closed, each elector may furnish his own ballot. These ballots, however, are required to be without indorsement. All other ballots are official. It is apparent then that the ballots in controversy were not in any sense unofficial ballots, and were not attempted *Page 424 to be voted in accordance with the provisions of section twenty-one.
It is obvious that the use of unofficial ballots must be exceptional in any case, and was allowed only to guard against an improbable, yet possible, contingency, but was not intended by the law makers to play an important or even usual part in the conduct of an election. In fact, I think that it must be assumed that the occasion has never arisen in this state when the use of an unofficial ballot has been required. If it had, that fact would undoubtedly have become notorious. Is it reasonable, therefore, to suppose that the legislature intended its elaborate, carefully considered scheme of ballot reform to apply to a mere incident of an election rarely if ever liable to occur, and to leave the great evil, which dominated the entire country and infested every polling place throughout the state, to rage without regulation, restriction or control? It would amount to saying that the leading and most effective provision of the statute containing its only operative clauses should be emasculated and turned into a provision having no practical effect or operation whatever. A most unjust and mischievous construction would be thus given to the law, for it would apparently authorize the improper indorsement of official ballots, and although so marked and distinguished as to reveal their contents, would nevertheless permit them to be counted.
The law so construed leaves the candidate confessedly elected by illegal ballots, to avail himself of their aid in entrenching his position so that, if he can ever be dislodged therefrom, it can only be when the lawfully-elected candidate is, in the remote future, enabled to prove the agency whereby the illegal transposition of ballots was accomplished, and the secret intent with which it was done. An act leading to such results might, we believe, be more appropriately termed a statute to encourage the violation of the right of elective franchise, than one to protect and purify it.
A further answer to the construction contended for is found in the provision which prohibits any indorsement whatever *Page 425 from being made upon unofficial ballots. Is it not, therefore, the height of absurdity to suppose that all the numerous and carefully-worded provisions, in respect to the disposition of improperly indorsed ballots, should be held to apply only to ballots which were never required by the law to be indorsed at all?
A construction of a statute which changes its language so as to exclude the only subject upon which it can operate, and confines its provisions to one which will never probably occur, is without a parallel in the history of jurisprudence. No words can sufficiently express the surprise with which an original ballot reformer will learn that the only object sought by him in his struggle for ballot reform was the exclusion from the ballot-box of a ballot which could never get there except by an improbable accident.
A few words more upon a point to which I have already adverted — the claim that a literal construction of this act would result in the disfranchisement of many voters. Those voters are termed innocent, well-meaning and apparently unconscious instruments in the proceedings which resulted in placing in the ballot-boxes of Onondaga county upwards of twelve hundred illegal votes. Why they are thought to be entitled to these descriptive appellations, I am unable to understand. The law expressly forbids every voter from revealing to anyone in the polling-place the name of the candidate for whom he intends to vote, or to show his ballot after it has been prepared in such manner as to reveal its contents, and in case of a violation of these provisions, he is deemed guilty of a misdemeanor. (§ 35, Laws of 1890, amended 1891.)
Can a voter, who deposits a ballot revealing plainly and conspicuously the names of the candidates for whom he intends to vote, claim to be innocent of a violation of these requirements? These voters most certainly cannot be said to be ignorant of the provisions of the law under which they are exercising their franchise, for the law itself requires that they shall inform themselves of its requirements respecting the form and character of the indorsements made upon their ballots, *Page 426 and refrain from using such ballots. It is elementary that every citizen is presumed to know the law. This is the settled theory of the law. How, then, can it be supposed that these voters were, either in law or fact, unconscious of the character of the ballot they were using? It was known, before the polls opened at each of these districts, that the Republican ballots were improperly indorsed, and this was presumably the subject of public discussion around the polls. Yet these voters deliberately determined (for they are not permitted to vote without deliberation) to use them, notwithstanding their non-conformity with the law. The inspectors of election were required, under serious penalties, to examine the indorsement upon each ballot as it was voted, and to determine as to its conformity with the law, and the voter was also required to see that no mark on his ballot revealed the character of its contents. How, then, can it be consistently asserted that any ballot was deposited in ignorance, either by the voter or the inspectors, of the fact that it was improperly indorsed? The voter, when preparing his ballot, had before him three ballots properly indorsed and one improperly indorsed. Who should be responsible for the selection of the improper indorsed ballots and the consequences of a disobedience of the law but the offending voter?
But it is urged that a strict construction of the law must result in disfranchisement. This is true, but the law plainly contemplates such a result, and who can complain, except those who are opposed to any restrictions whatsoever upon the action of an elector? No advocate of the Reform Ballot Law can justly criticise a result which was in the minds of its authors when the law was drafted and enacted. They clearly contemplated this effect, and determined that the injustice which a few might suffer through ignorance, willful blindness or inattention to the requirements of the law, should not be permitted to defeat the great good to be secured to the whole people by the adoption of an effectual scheme for the purification of elections. Can it then be seriously contended that voters may knowingly refuse obedience to the conditions imposed by the *Page 427 law, and still claim that their votes shall be counted as lawful ballots? Such a result would transform the elaborate scheme adopted as a reform measure into an elaborate farce, calculated only to embarrass and hamper the citizen, without adding a line or word to the statute looking to the disqualification of illegal or fraudulent voters, or the purification of elections. It was an argument strenuously urged against the adoption of the law that its numerous provisions complicated, novel, and technical as they were, would necessarily result in the disfranchisement of voters, but the advocates of the law contended that these results were the necessary concomitant of any efficient ballot reform law, and the legislature deliberately and intentionally approved the adoption of such restrictions and disqualifications. It is now too late to discuss the wisdom or policy of the law, and it is certainly not permissible to attempt its reform by judicial legislation. Such a course would not only destroy the effect of the present law, but would render any future legislation, however phrased, subject to the same power of construction, and liable to be rendered again ineffectual through the force of judicial interpretation.
In accordance with these views, I think the orders appealed from should be affirmed, and the illegal ballots excluded from the computation of votes cast for senator.