The circumstance that the plaintiff had to make out his title to the office by claiming the allowance in his favor of ballots in some respects imperfect, and which had not been allowed him by the canvassers, has no proper influence upon the main question involved in the case. If the plaintiff had received an undisputed majority of all the votes given, and had obtained the adjudication of the board of county canvassers in his favor, and had been prosecuted in such an action as this by the present defendant, the same precise question now under consideration would have arisen. That question is whether a candidate, who is found in a minority upon a correct estimate of the ballots actually deposited according to law, can, notwithstanding, claim and obtain the office, by showing that a number of the votes of the opposing candidate, sufficient to have changed the result, were cast by persons not qualified to vote. It is a very *Page 77 important practical question; for where the constituency is as numerous as it must always be where universal suffrage prevails, it can rarely happen, in an election even for a local office, that reasonable doubts may not arise as to the qualifications of a greater or less number of voters for the one candidate or the other. Hence, where the majority disclosed by the ballots is small, the strongest temptation will be held out to the defeated party to institute a scrutiny, of the character resorted to in this case, into the qualification of the persons whom he supposes to have voted for his opponent. The successful candidate will, of course, have an equal right to scrutinize his opponent's vote, and thus his right to the office will depend, not upon the official determination of the canvass, but upon the trial of an issue involving a great number of distinct questions of fact, entailing great expense to the parties and much inconvenience to the public, on account of the delay and the uncertainty, which must in the meantime prevail, as to the legal incumbency of the office. It is a plausible proposition, and in one sense a true one, to say that the right to an elective office ought to depend rather upon the number of legal votes given to the respective candidates, than upon the absolute number. But the position does by no means solve the difficulty presented by this case. The real question is who, according to the arrangements which the constitution and laws have provided for determining that question, received the greatest number of votes, and was elected to the office. If the law has left it as an open question, to be determined like ordinary matters upon which private rights depend, or, which is much the same thing, if the certificate of the canvassers is made only prima facie evidence of the state of the poll, as is argued, the right can only be definitely settled by the verdict of a jury. But the nature of the subject would lead us to conclude, a priori, that such could not be the system organized by the legislature. Nothing, in all the arrangements of civil government, can be more important than that the various official posts should be at all times occupied by magistrates not only lawfully chosen, but about whose title to their respective positions *Page 78 in the public administration there should be neither doubt nor uncertainty. The quiet and order of society and the due execution of the laws require that such should be the case. A person coming into an office under color of a legal election, no doubt has certain of the characteristics of a public officer; but common observation and experience show that, without an assured title to the office, the officer is not fully respected and obeyed, and is unable to accomplish the public objects which were intended to be secured by the creation of the office. If his title eventually proves defective, his right as an officer de facto will not protect him against the actions of individuals whose persons and property have been affected by his assumed official acts.
I am of opinion that the policy of the legal provisions which have been enacted upon this subject is to secure record evidence of the result of the election, which, save in a few exceptional cases to be presently mentioned, is conclusive upon the public and upon all individuals, and against the verity of which no allegation can be admitted. I do not proceed upon one of the grounds relied upon by the plaintiffs' counsel, namely, that the inspectors of elections are made judges of the qualifications of persons claiming to be elected and who may offer to vote. The statute declares that when the right to vote is challenged, the party desiring to vote is to be sworn to answer such questions as shall be put to him touching his residence and his qualifications. If he refuses to be so sworn, or to answer fully, after he has been sworn, his vote is to be rejected. This is not a determination of the inspectors as to his qualifications; but he is put aside for refusing to comply with the terms prescribed by law. If he consents to be sworn and to answer, he is to be interrogated upon the various points involved in the question of due qualification. If, in the judgment of the inspectors, his answers have shown that he is deficient in any requisite, that is to be pointed out to him. If he persists in his claim to vote, and the challenge is not withdrawn, the inspectors are obliged to administer to him the general oath, in which he affirms the possession in *Page 79 himself of all the qualifications. If he refuses to swear to this, his vote is to be rejected. But if he takes the oath, the inspectors have no discretion or judgment to exercise, but must receive his ballot. This is the effect and nearly the language of the statute. (1 R.S., 430, §§ 19-24.) There is a section in the election act of 1847, which seems, at a first view, to be adverse to this construction. It declares that, in case any inspector of an election shall knowingly or willfully permit or suffer any person to vote at an election, who is not entitled to vote thereat, the said inspector so offending shall, on conviction thereof, be adjudged guilty of a misdemeanor. (Ch. 240, § 16.) But this penalty may be incurred consistently with the provisions which have been referred to. For instance, if any inspector should receive the vote of one whom he knew was not qualified, without tendering him the general oath, or should allow him to vote although he refused to take the oath, he would undoubtedly violate the provisions of the section. But if the inspector performs his duty by tendering and administering both oaths, the voter does not deposit his ballot by the permission or sufferance of the inspectors, in any legal sense, but by the provisions of the act.
But while I disclaim any reliance upon the alleged judicial character of the inspectors, I am still of opinion that, so far as the value of the vote is concerned, the voter is made a competent and an effectual witness respecting his qualifications to vote. Should he swear falsely, he is liable to indictment and punishment for perjury; and the act directs the preservation of so much of the evidence of his having voted as shall be necessary to establish the fact upon the trial of an indictment. The inspectors are to make and file a minute of the names of the persons who take the oaths or either of them, and the clerks are to distinguish the names of such voters by an appropriate mark against them on the poll list, which list is to be filed after the canvass is completed. (1 R.S., p. 431, § 27; p. 436, § 57.) But, necessarily, there cannot be any written evidence preserved of the name contained on the voter's ballot, for it is of the essence of this manner of voting that the *Page 80 elector may conceal from every person the name of the candidate for whom he votes. In furtherance of this policy, and as if it were to provide effectually against the possibility of investigating that question, all the ballots, except one of each variety, which are to be annexed to the statement, are, at the close of the canvass, to be destroyed. (Id., § 58.) If they were preserved and placed on file like the poll list, in many cases, especially where they were written by the voter, or were secretly marked by him, or an inspector or clerk, as might readily be done, the means of determining the candidate voted for would be considerably increased. The directions to destroy the mass of the ballots affords some evidence that the legislature did not contemplate that such an inquiry could ever be entertained.
The position, that the right of suffrage is to be conclusively determined by the voter's oath, may, at first, appear unreasonable, as it may be said that he is an interested party. But the interest is not of a pecuniary nature, which would be more likely than any other to have a corrupting influence, nor of a kind calculated to operate very strongly upon the mind of any one. Many matters in the administration of justice, or the course of public business, are determined by the ex parte affidavit of the parties concerned, and we do not now consider it dangerous for parties to be witnesses in their own causes, however large an amount may be involved. It would be quite impossible to subject each claim to the privilege of voting to a forensic trial and determination. The form of the scrutiny must necessarily be brief and summary. Voters may swear falsely or mistakenly, and doubtless this is sometimes done. It is not often that the result of an election will depend upon the ballots of such voters; but admitting that it will in rare instances happen that a candidate having only a minority of legal votes will be declared chosen, still this evil would be infinitely less than the establishment of a rule which should declare that nothing should be considered determined, except prima facie, by the official canvass, and that the unsuccessful *Page 81 candidate might, through a quo warranto prosecution, try the qualifications of the voters in a suit at law.
I have already alluded to the policy of the law providing for a secret ballot. The right to vote in this manner has usually been considered an important and valuable safeguard of the independence of the humble citizen against the influence which wealth and station might be supposed to exercise. This object would be accomplished but very imperfectly, if the privacy supposed to be secured was limited to the moment of depositing the ballot. The spirit of the system requires that the elector should be secured then, and at all times thereafter, against reproach or animadversion, or any other prejudice, on account of having voted according to his own unbiased judgment; and that security is made to consist in shutting up within the privacy of his own mind all knowledge of the manner in which he has bestowed his suffrage. If this were the only argument against the postfactum judicial scrutiny into the qualifications of the voter which the defendant claims, I should consider it quite sufficient to show that no such scrutiny was allowable; for surely the law cannot be so inconsistent with itself as to authorize a judicial inquiry upon a particular subject, and at the same time industriously provide for the concealment of the only material facts upon which the result of such an inquiry must depend.
A single other suggestion in answer to those who insist that the law could never intend to commit to the persons offering to vote, the right of determining their qualifications conclusively by their own oath, will conclude the observations which I have to make on this part of the case. Absolute perfection cannot be predicated of any of the arrangements of government, with whatever human sagacity and wisdom they may be contrived. All that legislators can do is to devise what shall seem to them the best practical scheme to accomplish a given object of which the subject is capable. The public offices must be filled with incumbents, that the public administration may not suffer, and these incumbents must, according to our system, be selected, for the most part, by universal *Page 82 suffrage. To the generally universal right to vote there are certain necessary limitations, such as citizenship, proper age and residence. The problem for the legislature was to provide for the ascertainment of these qualifications in the case of each voter. The legislature was charged with this duty in the clause declaring that "laws shall be made for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage," thereby established. (Art. 2, § 4.) The first question no doubt would be at what time this determination should be made — before the vote is given, or after the election, and after the party prima facie chosen had entered upon the duties of the office. The provisions for challenging and swearing the voter indicate, certainly, to a general intent, that it was to be made before the voting, and the manifest convenience of such a course would confirm, if necessary, that conclusion. This is the plain meaning of the constitutional provision; for it would be absurd for a law to provide for a determination of the right to vote after the vote had been given and the election had passed. The next subject to be considered would be as to the method of determining it. Upon this point, the legislature considered that if one claiming to be a voter came forward, openly and publicly, before the inspectors and the public, who would be likely to be his neighbors and acquaintances, and offered to vote and no one questioned his right, or swore positively to his qualifications if challenged, it would be quite safe to assume that he possessed the requisite qualifications; for the inspectors and the whole community would not be likely to conspire in the interest of illegal voting. The law, therefore, provided that in such a case the vote should be received without other evidence. As to those whose right should be challenged, the legislative will was that the voter should be questioned on oath by the inspectors; that if doubts as to his right should be entertained, these doubts should be stated to him and the law explained, and that then it should be left to his conscience whether to affirm upon his oath, under the peril of temporal punishment for perjury, and of such religious and moral responsibility as might affect his mind, or to abstain *Page 83 from voting. This was the legal system provided by the legislature in obedience to the mandate of the Constitution, and the one which was in existence when the election in question was held. No doubt the determination of the right is left to depend essentially upon the voter's oath, and that there is a possibility that a false or mistaken oath may sometimes be taken. But is the hazard of a perversion of the franchise, under these arrangements, so great as to require us to hold, against the plain language of the statute, that a right is implied to reëxamine the question before a jury, in case the right of the prevailing candidate shall afterwards be called in question? I think not. One has only to read the testimony given on the trial of this case to see that the summary scrutiny at the polls, depending, as it necessarily must, ultimately, upon the voter's oath, is immeasurably more conducive to an accurate result than any verdict a jury can render upon such a trial. Out of nineteen witnesses who were interrogated as to whom they voted for, for county treasurer, in order to show that they voted for Smith, the plaintiff, six declared that they voted for him, and thirteen could not remember for whom they voted. Several testified that they did not vote at all, who were shown to have voted by the production of the poll lists. Equal uncertainty prevailed as to the alleged disqualification on account of alienage of those who were shown to have been the plaintiff's voters; for questions of law were there mixed up with questions of fact. The difficulties of arriving at the truth in this particular case were probably not greater than those which would generally occur upon such an inquiry conducted at a considerable distance of time from the election, and where the alleged voters whose right was denied were unlettered and ignorant men.
My conclusion, as has already been intimated, is that the law does not contemplate or allow the right of an elector to be questioned judicially or otherwise, after the election has taken place and the result has been declared according to law. I am strongly impressed with the belief that such a construction *Page 84 of the statute would be inconvenient and even mischievous in its tendency, and that its allowance would be intolerable in practice. I would not impute to the legislature an intention to provide such a system, without the clearest indications appearing in the language of the statute; and I am unable to see any evidence of such a design.
A good deal of reliance, on the part of those who differ from the foregoing conclusion, has been naturally placed upon certain decisions of this court, in which it has been held that on the trial of an information or an action in the nature of a quowarranto, extrinsic evidence may be received to show that ballots not allowed to a candidate in the official canvass, and in which his name was not accurately written or printed, were actually intended for him, and they have been estimated and allowed accordingly in the determination of the title to the office. We have, however, recently held that it is only the intention of the voter, as expressed by the ballot, interpreted, if necessary, as all written evidence may be, by proof of the concomitant circumstances, which can be taken into consideration on the trial. If the elector who deposited the vote should swear ever so strongly, that he intended it to be for a particular candidate, it could not be allowed to him, unless it appeared, upon the other competent evidence, that his name was actually written or printed upon it. (The People v. Saxton,22 N.Y., 309; and see also The People v. Seaman, 5 Denio, 409.)
I have examined attentively the several cases in which it has been held that, in a suit in the nature of a quo warranto information, the court were entitled to receive evidence in addition to the documents authenticated by the town and county officers concerned in conducting the elections and the canvassing of the votes. (The People v. Van Slyck, 4 Cow., 297; Exparte Murphy, 7 Id., 153; The People v. Ferguson, 8 Cow., 102; The People v. James, 19 Wend., 81; The Same v. Vail, 20 Id., 12; The Same v. The Rensselaer Turnpike, 23 Id., 222;The Same v. Heath, 3 Hill, 42-47; The People v. Seaman, 5 Denio, 409.) None of those cases, I think, afford the slightest countenance to the position that the qualifications of *Page 85 voters who have deposited their ballots can be subsequently examined. These cases may be arranged into two classes: those in which some error or omission of a clerical nature had occurred in the returns or statements which the election officers are required to make, as in The People v. Van Slyck and ThePeople v. Vail; and those in which one of the parties had been defeated by the failure to allow votes intended for him, but in which his first name had been written with initials only, or was in some other respects imperfectly written. The People v.Ferguson (8 Cow., 102, decided in 1827), was the first of this class. All that was necessarily decided was that votes for H.N. Yates ought to be allowed for Henry N. Yates, on proof that these initials were used by Henry N. Yates, and that no other person of that family name was voted for for the office. Chief Justice SAVAGE, in preparing the opinion of the court, went somewhat further than was necessary, or can now be sustained. He was of opinion that a voter was competent to testify for whom his vote was intended, which, as has been stated, has been reconsidered by this court; but the case in other respects, and in its main feature, has been steadily followed from that time to the present, and is now the undoubted law of the state. (See ThePeople v. Seaman, supra; The People v. Cook, 4 Seld., 67;S.C., 14 Barb., 259.) The same kind of evidence was received in the case before us, and, as has been mentioned, its competency was not disputed on the argument. It was, no doubt, a very liberal construction of the election law, which enabled this court, in the first of these cases, to act upon evidence which the officers concerned in authenticating the results of an election were not authorized to receive. But the justice of the case was so manifest that it is not surprising that the matter of form was dispensed with and the clear intention of a majority of the electors was allowed to prevail. The legislature, I conceive, at least impliedly, acquiesced. As the election law originally stood, the inspectors were directed, immediately after completing the town canvass, to destroy all the poll lists and ballots made and taken at the election. (Laws 1822, p. 273, § 9.) The Revised Statutes contained this direction, except *Page 86 as to ballots rejected as imperfect, which were to be preserved and filed with the town clerk. (1 R.S., 138, §§ 51, 52.) It was about the time of the preparation of this chapter that the case of The People v. Ferguson was decided. It was perhaps supposed that all ballots in which the name of the candidate was not accurately written would fall under the denomination of imperfect ballots. But a ballot might be intrinsically perfect, in which the name of the person intended to be voted for was not accurately written. Hence, in the next election law the inspectors were directed to attach to their statements one ballot of each kind found to have been given for the officers chosen at such election, or any or either of them. They were also, as in the former law, to attach to the same statements the defective ballots. The statements and the poll lists were to be filed in the town clerk's office, but the remaining ballots not so attached to the statement were to be destroyed. (Laws 1842, p. 1223, §§ 42, 45-47.) These provisions are still in force and governed the election of 1857 in question in this case. It will be seen that the legislature finally co-operated with the courts in carrying out the principle of the cases referred to; but it is evident from their persisting in requiring all the ballots except a sample one of each kind, to be destroyed, that they had no idea of encouraging a scrutiny as to the qualifications of electors who had given their votes, by preserving evidence by means of which such scrutiny might be prosecuted.
The foregoing considerations have led me to the conclusion that the judgment of the Supreme Court ought to be reversed and a new trial awarded.
WRIGHT and MARVIN, Js., also dissented.
Judgment affirmed. *Page 87