The duties of the officers concerned in ascertaining and returning the results of any election are particularly pointed out in the statutes and the faithful discharge of all those duties is enforced by severe penalties; and frauds therein are not easy and ought to be very uncommon.
The mode of canvassing the votes and ascertaining the results *Page 404 of elections are provided for in the act, chapter 130 of the Laws of 1842, and subsequent acts. In article 4 of title 4 of the act of 1842, the duties of inspectors of elections are prescribed. They are first to see that the whole number of ballots corresponds with the whole number of votes shown by the poll-lists, and then, as provided in section 40, they are to proceed to canvass and estimate the votes. Section 42 contains a provision for the first time found in the laws of this state as follows: "The canvass shall be completed by ascertaining how many ballots of the same kind corresponding in respect to the names of persons thereon, and the offices for which they are designated, have been received; and the result being found the inspector shall securely attach to a statement of such canvass one ballot of each kind found to have been given for the officers to be chosen at such election, any or either of them, except those given for electors of president and vice-president; and they shall state in words at full length immediately opposite such ballot, and written partly on such ballot and partly on the paper to which it shall be attached, the whole number of all the ballots that were received which correspond with the one so attached, so that one of each kind of the ballots received at such election for the officers then to be chosen, shall be attached to such paper, with a statement of such canvass. They shall also attach to such paper the original ballots rejected by them as being defective which were given at such election." Section 43 contains a similar provision as to the canvass and statement of the votes given for presidential electors. Section 44 is as follows: "The statements to be made by the inspectors shall contain a caption stating the day on which, and the number of the district, the town or ward, and the county at which the election was held in relation to which such statement shall be made; it shall also contain a statement showing the number of ballots taken for each person, designating the office for which they are given, which statement shall be written in words at length; and at the end thereof a certificate that such statement is correct in all respects; which certificate shall be subscribed by the inspectors." *Page 405
In this case, in some of the returns placed before the county canvassers, there were discrepancies between the number of votes written in the statements under section 44, which for brevity I will call general statements, and the numbers written on and opposite the ballots attached under section 42, which I will call detailed statements, the latter numbers being greater than the former in most cases where discrepancies existed. The canvassers decided to canvass the returns by taking the detailed statements, and they did so canvass; and the relator complains of this, claiming that they were bound to take and canvass the general statements and ascertain the results of the election from them. The court below upheld the claim of the relator and commanded the canvassers to canvass the returns by taking the general statements and wholly disregarding the detailed statements. The sole question of law for our consideration is whether the court could legally issue this peremptory command to the canvassers, and this question must be solved by a careful reading and scrutiny of the statutes and thus arriving at the intention of the law makers.
Under section 42 the inspectors are first to ascertain how many ballots of each kind have been received, and then they are to attach one ballot of each kind, omitting none, to the statement and write opposite to it, and partly on it, the number of such ballots received The detailed statement will thus show, by adding the numbers thus written, the whole number of votes given at the election and how many were given for each candidate.
Why are the ballots required to be thus attached? In 1842 when this provision first came into the law, ballots could be written or printed, in any form, of any size and upon any paper, and hence the requirement that the ballots should be attached could not have been to show whether or not some law had been complied with. Yet the ballots are to be attached for some purpose. For what purpose? Undoubtedly as an additional security for an accurate canvass and as an additional safeguard against frauds and mistakes. The ballots are not only to be attached, but the numbers of the ballots are *Page 406 to be written partly on the ballots and on the paper to which they are attached. Why is this minute requirement if they are to serve no purpose and have no effect? Can it be supposed that all this is a mere idle ceremony? Who shall say that the general statement and the detailed statement are not of equal importance? One is evidently intended as a check on the other. The general statement is made up of the details contained in the other and they should exactly correspond. The canvass is not completed until the ballots have been counted, attached and written on. The detailed statement is part of the canvass. It is made under the same sanctions as the general statement, and the same punishment can be meted out to inspectors for any fraud or wrong in respect thereto. It is to be canvassed and verified in the same way as the general statement, and the general certificate required by section 44 applies to it as well as to the general statement. Section 11 of the act, chapter 56 of the Laws of 1880, requires that "every return or statement of the result of the canvass of any election shall be made upon a single sheet of paper, or, if not, each half sheet shall be signed at the end thereof by the inspectors;" and here the return or statement means the whole return or statement which the inspectors are bound to make, including the attached ballots and what is written thereon. Sections 45 and 48 of the act of 1842 and section 14 of the act of 1880, require that a true copy of the statement shall be filed in the office of the clerk of the town or city, that the original statement duly certified shall be delivered to the supervisor of the town or ward, and that a duplicate thereof shall be filed in the office of the county clerk. What statement is meant by these provisions? Evidently the whole statement, the general as well as detailed, made by the inspectors. And these statements are, by section 15 of the act of 1880, made public records, open to inspection and examination by any elector of the state. The two statements are never to be divorced, and where the one goes, the other must also go. It is thus clear, too clear, it seems to me, for reasonable doubt, that the detailed statement is part of *Page 407 the statement and return which the inspectors of election are required to make.
The election laws applicable to the city of New York throw some light upon the meaning of the word "statement" as used in the acts of 1842 and 1880. Section 1892 of the Consolidation Act (Chapter 410 of the Laws of 1882) contains the substance of section 42 of the act of 1842, as to attaching ballots and as to writing the numbers upon them; and section 1895 contains the substance of section 44 of the act of 1842, in reference to what I call the general statement. The inspectors are required to make triplicate statements of the results of the canvass and estimate, one to be delivered to the clerk of the board of aldermen, one to the county clerk and one to the chief of the bureau of elections, and all these statements must be complete, containing the attached ballots and what is written upon them.
The statement having thus been made, delivered and filed, then follows the duty of the county canvassers. The original statements are to be placed before them by the supervisors to whom they have been delivered by the inspectors, and they are to canvass them. Their duty is confined solely to the canvass of such statements. They cannot go outside of or disregard them, and they are to determine what they show as to the number of votes cast for each candidate, and declare the results. The returns placed before them containing the general and detailed statements with ballots attached are called statements, and they are the statements upon which they are to act. They cannot omit a portion of any statement, but they are to consider the whole statement and base their conclusion upon that.
Now, when these canvassers came to act, they found upon the returns placed before them two sets of numbers which ought to have agreed, but did not agree. What was their duty then? Clearly to send back the returns to the inspectors for correction, under the act of 1842, where it is provided that "if, upon proceeding to canvass the votes, it shall clearly appear to the canvassers that in any statement produced to them" (the word statement here evidently meaning the whole return *Page 408 or statement), "certain matters are omitted in such statement which should have been inserted, or that any mistakes which are clerical merely exist, they shall cause such statement to be sent by one of their number," to the inspectors to have the same corrected, and the inspectors are to be convened and make such correction as the facts of the case require but not change or alter any decision before made by them, only causing their canvass to be correctly stated. Under this provision of law if the canvassers find that ballots have not been attached to the returns by the inspectors, that is a case of omission, and they can send the returns back to have the omission supplied. Here the discrepancy between the two sets of numbers appears to be and was manifestly on the face of the returns the result of clerical mistakes, either in writing the numbers or in adding up figures, and the canvassers could have sent the returns back for the correction of these mistakes. The inspectors could have corrected them by resort to the tally sheets, or to their memories, or to any other facts in their possession which would enable them to make the corrections so that the two sets of numbers would correspond. But the county canvassers, as this record discloses, refused to send these returns back for correction. Assuming now that they were not absolutely bound to send them back for correction, how were they bound to canvass them? Then it was for them to determine the significance, meaning and result of the returns. If they thought one set of numbers was more reliable than the other, they could take that and base their canvass upon it. All that was written upon or in the returns constituted the statement which they were to canvass. There is certainly ground for claiming that a detailed statement made up of the numbers of each kind of the ballots, was more reliable than the general statement composed of totals reached by adding up the ballots. The general statement must have been reached by adding up the votes contained in all the ballots of every kind, and there is one chance of error, that of mistakes in addition, which is absent from the detailed statement. It was for the canvassers to determine in the case of any return which of the two statements was the most reliable *Page 409 and the safest guide. Where does the court get the power to command them absolutely to take the one statement rather than the other? What right has it to interfere with and control the discretion vested in the canvassers? If the canvassers had taken the general statements as their guide, and found the results of the election from them, it would have been quite as competent and equally erroneous for the court to have commanded them to make their canvass from the detailed statement.
If the court had commanded them to send the returns back for correction, some argument for the jurisdiction of the court could have been made, and the jurisdiction could be upheld if the canvassers were under an absolute legal duty, under the circumstances, to send them back. Whether they were under such an absolute legal duty we need not now determine, because no such command has been issued. The court, without any correction of the apparent mistakes, and without giving the canvassers any opportunity to have them corrected in the mode pointed out in the statute, an opportunity which they might embrace rather than canvass the general statements has absolutely commanded them to canvass the returns with these mistakes apparent upon them in a particular way disregarding an important and material portion of them. What right has the court to command the canvassers to disregard any portion of the returns which, under severe penalties the inspectors were bound to make for the purpose of showing the results of the elections in the election districts.
Suppose the detailed statement shows that ten or a hundred ballots of the kind attached were cast at any election, while the general statement makes no mention of such ballots, what then are the canvassers to do? They may send the returns back for correction. But can the court command them to make their canvass from the general statement, disregarding wholly the detailed statement showing beyond question a number of votes cast?
There certainly can be no policy which requires greater weight to be given to the general statement than to the detailed *Page 410 statement. Frauds are easier and mistakes more liable in the former than in the latter.
I do not deem it important to give particular attention to the return of the votes in the second district of the first ward of the city of Elmira. That stands upon a different footing from the other returns of inspectors. Even if the court below is right in reference to that return, its order cannot be justified.
A careful consideration of the whole case leaves upon my mind no doubt that the learned court below fell into error in its construction of the statutes. To me it appears demonstrably clear that the canvassers acted within their jurisdiction in making the canvass as they did; and if any wrong has been done in canvassing votes, and the relator has actually received the greatest number of votes for representative in congress, he must seek his remedy in the house of representatives, the only body that can given him relief, and the public justice for violated law must be vindicated in the criminal courts.
The orders of the General and Special Terms should be reversed and the writ of mandamus denied with costs in all the courts.
All concur with O'BRIEN, J., except, EARL, J., dissenting and RUGER, Ch. J., not voting.
Order affirmed.