I have reached the conclusion that we cannot escape the onerous task of examining the ballots, which are in dispute in this proceeding. It might well have been spared to this court by express enactment in the Election Law; but without such we would not be warranted in refusing to assume jurisdiction. I am unable to say that questions of law are not presented by this appeal. Entertaining that view, I have addressed myself to the examination of the ballots in dispute and, classifying them, as nearly as may be, according to the objections made to them, I shall, specifically and briefly, state my conclusions as to their validity or invalidity, as votes for the respective candidates for the office of president of the borough of Richmond.
First. As to the ballots upon which the Special Term and the Appellate Division have agreed, with respect to their allowance or rejection, I am satisfied with their conclusions. There are 101 of these ballots, as nearly as can be made out from the record.
Second. The following ballots, numbered 5, 52, 74, 80, 81, 88, 98, 128, 136, 143, 144, 147, 160, 161 and 173, being fifteen in all, were objected to because of erasures, cancellations, or for being defaced. I think, under section 105 of the Election Law (Laws of 1896, ch. 909), that these ballots were invalidated and could not be counted. Twelve of these ballots affect Cromwell and three of them affect Feeny.
Third. The following ballots, numbered 64, 93, 165 and 178, being four in all, were objected to as having been marked *Page 40 for identification, from the fact that the cross mark was placed in the voting spaces before the words on the ticket "No Nomination." I think that, under section 105 of the Election Law, these ballots could not lawfully be allowed; inasmuch as they bore upon them a mark other than the cross mark to be used by the elector in voting, in the circles, or in the voting spaces to the left of the names of the candidates. All of these ballots affect Cromwell.
Fourth. The following ballots, numbered 3, 33 and 45, being three in all, contained the names of candidates written with pencil in the blank column, whose names were already printed upon the ballots for the office. Under the provisions of section 105, these ballots were clearly vitiated. All of these ballots affect Feeny.
Fifth. The following ballots, numbered 58, 60, 84, 87, 95, 97, 99, 101, 112, 167, 174, 176 and 185, being thirteen in all, show cross marks before the names of opposing candidates for the same office; [not the office in question in these proceedings]. I do not think that the effect of the elector's action was to destroy the whole ballot; but that, under paragraph one, subdivision two, of section 110 of the Election Law, the vote for the office particularly affected by these voting marks for opposing candidates could not be counted. I think, therefore, that Cromwell should be allowed eight and Feeny five of these ballots.
Sixth. The following ballots, numbered 27, 34, 59, 65, 66, 72, 100, 102, 105, 113, 134, 157, 158, 159, 179, 183 and 184, being seventeen in all, showed cross marks before the name of the same candidate for the same office in two different columns upon the ballot. I think that we should regard the effect of so voting to be that of surplusage, merely. No just reason exists for regarding such as marked ballots; when, under paragraph one, of subdivision two, of section 110, we find, where cross marks are found before the names of opposing candidates for the same office, that the effect prescribed is to invalidate, not the whole ballot, but only the vote for the office particularly affected by the voting marks. Although the *Page 41 statute does not refer to just such a case, the principle is the same and I am disposed to think that it is open for us to hold that, if in the one case, mentioned in paragraph one of subdivision two, the ballot is not to be regarded as marked for identification, it should not so be regarded in the other. The justice to the elector, which should characterize the interpretation of the statute, seems to demand that we should so hold. I think, therefore, that Cromwell should have counted for him fourteen of these ballots and Feeny three.
Seventh. The following ballots, numbered 14, 24, 77, 85, 103, 133, and 139, being seven in all, contain cross marks in two, or more, of the voting circles at the heads of the columns. I think that they should all be counted, under paragraph six, of subdivision two, of section 110; which provides that where the cross mark is in more than one circle, and if on either of the tickets there shall be a candidate for an office, for which noother candidate is named on the other ticket, the elector's vote shall be counted for such candidate. The effect would be to give to Cromwell the votes on these seven ballots; inasmuch as his name was on the different tickets that had been marked in the circles.
Eighth. The following ballots, numbered 35, 94, 109 and 170, being four in all, were objected to because the elector had attempted to vote for two or three candidates for the same office. Under paragraph one of subdivision two of section 110, I think that the effect was, not to destroy the ballot, but to require the inspectors to throw it out as a vote for the particular office affected; it being impossible to determine the elector's choice for the office. In that view, Cromwell would receive three and Feeny one of these votes. Ballot 131 contained a mark made in the circle at the head of the ticket, as if by a sharp instrument, not a pencil, and was thus vitiated. I think that it should not be counted for Feeny.
Ninth. The following ballots, numbered 28, 31, 32, 57, 70, 106, 107, 110, 111, 117, 118, 127 and 137, being thirteen in all, contain voting marks opposite the names of two candidates for the same office in different columns, but not on *Page 42 the same horizontal lines. I do not think that the ballots were vitiated thereby; inasmuch as, in every case, there were two candidates to be elected to the office; and the elector should be regarded as having exercised his right to select which one of the two candidates, on the different tickets, he would cast his vote for. Some of these ballots were also objected to because of defects, which, I think, are too trivial to affect them and which need not be more particularly referred to. Of these ballots, nine were for Cromwell and four were for Feeny.
Tenth. The following ballots, numbered 18, 75, 78, 104 and 148, being five in all, I think were rendered invalid because of marks found upon them, either against the words "No Nomination," or elsewhere upon the ballots. Of these, four affect Feeny and one affects Cromwell.
As to ballots numbers 3, 33, 45, 106, 107 and 128, considered above, the Appellate Division affirmed the determination of the Special Term. They should, therefore, be transferred to the first class, whilst numbers 126 and 129, included in the first class, were reversed and should be transferred to the ninth class and held valid.
I think that the judgment of the Appellate Division should be modified, so as to provide for a recount in accordance with the views herein expressed; and, as so modified, affirmed, without costs to either party.