This is a proceeding in the nature of a writ of quo warranto to remove the defendant from the office of treasurer of the state of New York, and to invest the relator with such office.
By the official state canvas of votes given at the general election held in 1851, the defendant was declared elected to that office.
The state canvassers estimated the votes given for the defendant at 200,693, and the votes given for the relator at 200,465, which would give the defendant an apparent majority of 228. It is conceded that the defendant was entitled to the vote in the 3d district in the town of Catskill, Green county, being a majority of 106, which would increase his majority to 334.
I propose, before entering into the discussion of the *Page 95 questions which I intend to examine, to allow the relator the following votes, not estimated in the canvas by the state canvassers, viz: Votes given Benjamin C. Welch, jr., in Ontario county, 32; Benjamin Welch, in Chemung county, 68; and to the same in Tompkins county, 47; making in the whole 147. This number deducted from the defendant's majority of 334 will still leave him a majority of 187.
To overcome this majority the relator claims that the votes given in the second district of the 14th ward in New York which gave the relator 266 majority, and the votes in the second district in the town of Chesterfield, Essex county, which gave the relator 25 majority, should be allowed to him. These majorities, in the aggregate amounting to 291, would overcome the majority of 187 for the defendant, and leave a majority of 104 for the relator.
The defendant insists that these votes should not be allowed, and claims that the vote of the second district in the town of Williamsburgh, which gave the defendant a majority of 152, and which was allowed by the state canvassers, should be deducted from the relator's vote so allowed. The relator is not entitled to sustain the judgment, unless the votes above referred to, both in New York and Williamsburgh, should be allowed. The votes in Chesterfield will not change the result.
The only questions I propose to examine in this case, relate to the votes above referred to in New York, Chesterfield and Williamsburgh; and in examining these questions, I shall lay out of view all of the objections in relation to the clerk of the polls, the manner of administering the oath, and whether the clerks, inspectors and voters were or were not properly sworn, or were or were not sworn at all, and confine myself to the questions relating to organization of the several boards of inspectors, whether they were legally organized, the elections legally conducted, the canvas legally made, and whether the irregularities complained of vitiate and destroy the election. *Page 96
The facts in relation to the election in New York, are that in the temporary absence of two of the inspectors, O'Neill the third inspector appointed McLaughlin inspector, McLaughlin acted as inspector three times during the day, at one time with one other inspector, at one time with two others, and at another time with three other inspectors; first acting with O'Neill until Price, one of the absent inspectors returned, and then with O'Neill and Price until Gilmore the other absent inspector returned, and when they both returned he ceased acting.
At a subsequent time McLaughlin returned and acted as inspector with Price and Gilmore in the absence of O'Neill, and afterwards acted as inspector sometimes with one and sometimes with two, until all three of the regular inspectors had returned, when he ceased to act for the time and went away, and that near the time of closing the polls, McLaughlin returned to the poll room.
Price, one of the inspectors, upon looking at his watch discovered it was sun down, and so informed McLaughlin and O'Neill, and said it was time to close the polls. The inspectors, McLaughlin acting as one of the three, then agreed to close the polls, acting upon the idea and belief that it was sun down; they agreed to and did close the outer door of the large room in which the electors were, prevented all others from coming in and received the votes of those in the room ready to vote; those in the room ready to vote voted, some ten or fifteen in all; all was done within ten minutes, and all done after sun down, and the polls were then closed; between the time Price announced it was sun down and the time of closing the polls, four persons, including McLaughlin, acted as inspectors a part of the time; it appeared that no legal votes were rejected, and all the legal votes offered were honestly received and placed by the inspectors in the appropriate boxes; that as soon as the last vote was received the usual proclamation closing the polls was made and the polls closed.
Section 21 of title 3, of the laws of 1842, provides that *Page 97 at each town meeting to be held in the several towns of this state and at each annual charter election, to be held in the several cities of this state, the electors of said city or town, shall be entitled to vote by ballot on the same ticket with other town or charter officers for two electors residing in each election district of such town or city, to be inspectors of election for such city or town; and the two persons in each district receiving the greatest number of votes shall be two inspectors of election for such district at all elections the ensuing year. The presiding officers of such town meeting or charter election shall immediately after the votes of such town meeting or charter election shall be canvassed, appoint by writing subscribed by a majority of such presiding officers another inspector of election for each election district to be associated with said two inspectors so elected, and who shall thereupon be one of the inspectors of election of such district. Such inspector shall be selected from the two persons in such election district who shall have the highest number of votes next to the two inspectors so elected.
Section 22 provides that in case of vacancies, the supervisor, town clerk and justices of the peace of the town, shall designate and appoint as many inspectors of such election district, as shall be necessary to supply the vacancies, and shall file a certificate of such appointment in the office of the town clerk;and the persons thus appointed shall be inspectors of suchelection for such district. And all vacancies that may exist or occur in the office of inspector of election in any city shall be filled by the common council of said city.
Section 3 of title 8, provides that if a majority of the inspectors shall not be present on any day on which an election is held, the inspectors or inspector attending shall appoint so many electors of the town, ward or district as may be necessary to form a board.
Without referring to other irregularities in conducting this election in relation to which I do not intend to express *Page 98 an opinion, I think there was one error committed which renders the election in the district absolutely void. I am not disposed to controvert the position that the acts of officers de facto can not be impeached collaterally, but are binding and conclusive so far as the public or third persons are concerned; but I insist that the principle does not apply where a person obtrudes himself into an office, and undertakes to exercise the duties thereof without the first requisite of official authority.
In this case McLaughlin was appointed inspector to fill a temporary vacancy. I will not dispute the legality of such appointment, although I think it may well be questioned. Admit that McLaughlin was legally appointed; by virtue of such appointment he could only act until a majority of the inspectors should attend: when that contingency happened his functions ceased, and he was no longer an officer, either de jure or defacto; but he continued to act till both returned, and then ceased acting as an inspector, for the time. It seems to me perfectly clear that from that time he could have no further power or authority as inspector, and every act of his subsequent to that time, was absolutely null and void. He was from this time a mere intruder, having no more right or authority over the ballot boxes than any private citizen. Yet he subsequently returned and officiated as inspector, without any new appointment, sometimes with one and sometimes with two other inspectors. At times when he was acting with only one inspector, there was in reality no board, but the election was conducted by one inspector alone. Again he returned and officiated as inspector with all of the others, increasing the number of inspectors to four. If this proceeding can be tolerated, and the election held valid, there is nothing to prevent the whole number of electors in the district from acting as inspectors, except the physical impossibility of their officiating together in a single body. But it is unnecessary to pursue this subject farther, as it is not pretended that the election was regularly *Page 99 conducted, but simply that the election should not be held void on the sole ground of the irregularities, no fraud having been shown.
In this connection it may be important to determine what is meant by the provisions of the statute defining the number ofinspectors, the manner of their election or appointment, and theorganization of the board.
The legislature has provided for the election of two, and the appointment of one inspector. The one to be appointed is to be selected from the two highest who were not elected. Is it reasonable to suppose that the legislature would thus in effect limit the number of inspectors to three, debar the people from voting for a greater number than two, and yet allow one of the inspectors chosen or appointed to increase the number not only to four, but to any number his fancy, whim, or partiality may dictate to him? For if it is settled that McLaughlin was a legal inspector after the return of Gilmore, a precedent will be established for any conceivable increase in the number of inspectors, and the board may become a mere rabble, without order, and beyond control.
I think these provisions of the statute are something more than merely directory. An election can not legally be held by more than three, nor less than two inspectors; and if this principle is violated the election is void, and the certificate of the inspectors should not be regarded. Suppose the certificate in this case had been signed by the four inspectors, McLaughlin included, would the board of canvassers have been bound to receive it? I admit that if the certificate had been signed by only two of the inspectors, it might have been received, on the ground that the officers are presumed to do their duty, and the court will presume that the third inspector was present and participated in the acts of his associates, although he did not sign the certificate. Not so where the certificate is signed by four. Such certificate carries on its face evidence of its illegality. The election was held by a person acting *Page 100 as inspector who was not an inspector de facto, but was a mere intruder. For the above reasons I consider the election in the second district of the 14th ward of New York as absolutely void, and the votes ought not to be allowed.
The preceding remarks will also apply to the election in the second district in the town of Williamsburgh. In that district James Hanford, James Murphy and Jeremiah Holmes were sworn and acted as inspectors, under an appointment signed by Abraham Berry and J.D. Sparham, supervisors, H.C. Boswell, justice, and John T. Bunce, town clerk. Such inspectors opened the polls and continued to receive votes and act as inspectors until about nine o'clock, when Smith, one of the elected inspectors, came and commenced acting as inspector. When Smith came, Hanford, one of the appointed inspectors, left, and ceased acting as such. About eleven o'clock, Burdett, another of the elected inspectors, came, and Burdett, Smith, Murphy and Holmes all acted as inspectors a short time, and then Murphy ceased acting as inspector, and Smith, Burdett and Holmes held the election during the remainder of the day, Murphy returning and acting with them about one hour before the polls closed. After the polls closed, one Samuel B. Scott was sworn in as inspector of election, and Hanford, Murphy, Holmes, Smith, Burdett and Scott proceeded to canvass the votes, and were all engaged for a time in canvassing the city box. Burdett and Smith took the state box to another table, about three feet distant, and proceeded to canvass it there. The certificate was signed by Burdett, Holmes, Hanford and Murphy.
It is not very material to inquire whether Hanford, Murphy and Holmes were legally or illegally appointed inspectors. If there were vacancies in the office of inspector, it was the duty of the supervisor, town clerk and justices to supply such vacancies by appointments, and the persons so appointed will be inspectors of election for the district. (Election Law, Title 3, § 22, abovecited.) If their appointment was legal, the inspectors elected ceased to be *Page 101 inspectors. (§ 22 above cited; People v. Stevens, 5 Hill, 620; People v. Jones, 17 Wendell, 83.) If it was not on its face legal, they were not inspectors. Admitting that they were inspectors de facto, and not de jure, so that the officers of the elected inspectors were not vacated, the difficulty still recurs that the appointed inspectors continued to act after the board was full by the appearance of the elected inspectors. The board consisting in fact of sometimes four, and lastly, during the canvass, of six inspectors.
On the other hand, if the appointment was valid, the elected inspectors ceased to be inspectors, and their acts as such were without color of office, and void. So that in whatever light we view the proceedings of the election, it is evident it was held by a self constituted board, without color of office, and their proceedings are absolutely void. They were void, too, upon their face. The certificate of the canvass was signed by four persons claiming to be inspectors. That was a greater number than is allowed by law, and could not be valid.
The election in the second district in the town of Chesterfield, Essex county, is equally objectionable with that of the second district of the 14th ward of New York, or the second district of the town of Williamsburgh. The certificate of the canvass of votes in that district was signed by Seymour Ames, Jehiel Beardsley and Major B. Weston, as inspectors of election. There was no proof that they were inspectors, or that either of them was an inspector, either elected or appointed, but they acted as such during the day, received the votes and canvassed them, and made the returns. Jesse Gray, a witness for the plaintiff, testified that he was present between nine and ten o'clock in the morning, when the polls were opened, and was there until they closed. The persons who signed the return officiated as inspectors all day. No question was raised by any one as to their right to act. Nobody claimed to be inspectors that day except these men. On his cross examination the witness further testified as follows: "The *Page 102 question as to who were the inspectors was talked of in the morning, before the polls were opened. It was conceded on all sides that Ames was an inspector. Finch said so and others. Some one was sent for Ames, because he was reputed to be an inspector. Ames came and proceeded to organize the board acting as inspectors. He appointed the others." On being reexamined by the plaintiff, the witness testified: "Finch was a whig, and came there to help his whig friends. He was deputy sheriff, and claimed to know that Ames was an elected inspector; and said hegot his information from the town clerk before he came to theelection."
This is all the evidence that was given as to the official character of the inspectors. It is possible that in a proceeding simply to establish the fact of the official character of Ames, it might have been prima facie sufficient, but I think even in that case it is too slight to be allowed. But the proof required in this case, should be something stronger than in the case stated. The county and state canvassers rejected those votes, deciding that the evidence was not sufficient to establish the official character of the inspectors. The supreme court were trying the case with the weight of the decisions of the two boards of canvassers to overcome. Mr. Justice Mason, in his opinion delivered in this case at general term says, "The duties of the inspectors as well as those of the county and state canvassers partake of a two fold character; as some of those duties are judicial and some ministerial. In determining whether certain ballots are intended for a given candidate or not they act in a judicial capacity; while in certifying the returns of the canvass their act is purely ministerial. I think therefore it devolves upon the defendants to impeach this determination by some legitimate evidence, or else it must be allowed to stand as they have determined it."
In this opinion, I fully concur with the learned justice, and I apply the principle to this case. The county and state canvassers acted judicially in rejecting the returns *Page 103 from the second district of the 14th ward of New York, and from the 2d district of the town of Chesterfield. It therefore devolved upon the plaintiff to impeach their determination by some legitimate evidence, or else it must be allowed to stand as they have determined it. This the plaintiff has failed to do, and the votes should all be rejected.
Mr. Justice Mason in his opinion says, "While the law regards the acts of officers de facto acting under color of legal title valid as regards the public and third persons, it does not go the romantic length of giving sanction in any case to the acts of an officer where there is a plain usurpation of the office without any show of legal title. The law holds the acts of the intruder void, both as regards the public and third persons. (The People v. White, 24 Wend. 520, 526.) The mere claim to be a public officer, and the performance of a single act would not probably constitute an individual an officer de facto. There must be some color of an election or appointment or such an exercise of the office and acquiescence on the part of the public as would afford a reasonable presumption of at least a colorable election or appointment. (Wilcox v. Smith, 5 Wend. 234.")
Apply these principles to the case of the Chesterfield election. There was no color of an election or appointment of those inspectors. When the evidence is sifted down, all the proof that really exists in the case amounts to this and no more: "Finch said that the town clerk told him that Ames was an inspector," and upon that statement all the reputation there is in the case rests. It is true that Gay swears that "It was conceded on all sides that Ames was an inspector," but when followed out, it is pretty evident that the universal concession arose from the fact that Finch said so, because the town clerk had told him so; Ames on the evidence manufactured for him is sent out for, comes to the polls, enters upon the discharge of the duties of inspector, appoints the other two, and organizes the board. *Page 104
So in New York, an inspector acts openly without the slightest pretense of an appointment or election, and in Williamsburgh, the inspectors act either without appointment or election of any kind which is valid, or they act after others are appointed in their places and their offices had become thereby vacated.
I am willing to concede and do admit that the character of an officer may be established by proving that he acts as such, but I do not admit that such character can be established where the whole duties of the office consist in the performance of a single act, or that a performance of such act without objection is any evidence of his title to the office. No authority has been cited, and I apprehend none can be produced going this length. It is true that the acts of an officer de facto, whose official duty consists in the performance of a single act, is valid; but to prove him an officer de facto there must be some evidence besides the act itself.
There is no authority to show that the statute regulating the organization of the board of inspectors is merely directory. If such is the law it is of no importance whether inspectors are chosen or appointed or not. Any person claiming to be an inspector may organize the board, and the board so organized may conduct the election, and the election so conducted must be valid, and the votes must be allowed in determining the result of the election.
The counsel for the relator cites the case of TheCommissioners of Highways of the town of Carmel v. The Judgesof the County Court of Putnam County, 7 Wendell, 264, andOrvis v. Thompson, 1 John. R. 501, as authority proving that too great a number of inspectors will not vitiate the election.
It is difficult to perceive what bearing these cases have upon the question involved. The case in Wendell merely decides, that where the statute provides that the commissioners of highways, shall not lay out a highway unless it is certified to be necessary by twelve freeholders, the certificate *Page 105 is not rendered invalid by reason of its being signed by more than twelve freeholders; that in such case the greater number includes the less.
In the latter case a tavern license was made, when the supervisor and eight justices were present, a majority of whom signed the license, but the supervisor did not sign it. The court held that the supervisor might in his discretion associate more than two justices with him to form a board of excise; that the number was not limited by the act to three and no more, and that if a majority of the commissioners of excise signed it, it was sufficient, as the signature of the supervisor was not indispensable.
These are all the authorities cited or relied upon by the responden'ts counsel to sustain that point, and it seems to me that no argument is necessary to show that these authorities are too remote to have the slightest influence upon the questions. If they prove any thing they prove quite too much; for if one inspector beyond the number authorized by statute can be added, the number might be increased so as to include every elector in the district.
But it is said that the relator who is innocent as to all the irregularities complained of ought not to be deprived of his office or suffer for the errors or faults of the inspectors. I answer this by the remark, that this question involves a principle of public policy, and the individual right is subordinate to the public good. The legislature has prescribed certain rules and regulations to ascertain and determine the will of the people. These rules and regulations should be followed strictly, or we fall into wild chaos without any certain guide or landmark. The objection too is quite too comprehensive. If the candidate is to be protected in his rights, notwithstanding the errors and irregularities of the inspectors, and the election is to be held valid if honestly conducted, why should it not be where it is fraudulently conducted unless the candidate himself is guilty of the fraud? Nay more; why should he not be protected against casualties and accidents? Some dallying voter has been *Page 106 prevented by accident from attending the polls: he intended to vote for the relator, but did not reach the polls in season; you must allow his vote because the candidate should not suffer for a matter that did not arise from his fault. This objection is not sound, and ought not to have any weight in disposing of this cause.
In conclusion, on this subject I fear the consequences of loosening the guards and barriers thrown around the ballot box which must be implied by tolerating the irregularities complained of. The individual rights of the candidates are of no importance in comparison with the necessity of a strict and rigid construction of the requirements of the election laws. The courts have already gone quite too far in holding omissions of acts required by this statute as unimportant; and they should not farther relax the statutory provisions.
I do not propose to examine the other questions in this case. I think some of the facts should have been submitted to the jury, but so far as regards the votes given for Benjamin C. Welch and Benjamin Welch, the judge decided as the jury should have found, and I am not disposed to send the case back on that question; and in addition to that conclusion the questions I have examined are decisive of the case. If I am right as to these questions, the judgment should be reversed. As a majority of the court have come to a different conclusion, it is unnecessary to inquire whether, in case the judgment should be reversed, the defendant should be restored to the office from which he has been ousted by the judgment.
RUGGLES, Ch. J., GARDINER, JEWETT, MASON and MORSE, JJ., concurred in the opinion of judge Willard.
JOHNSON, J., did not hear the argument.
Judgment affirmed. *Page 107