On the 2d day of May, 1899, the Legislature, by chapter 473, amended chapter 179 of the general laws of 1898, known as “ An act in relation to enrollment for political parties, primary elections,: conventions and political committees,” relative to the enrollment for and holding of primary elections.
In the 1st section of .the act of 1899 it is. provided that the short title of the act shall be the Primary Election Law.”
In the 6th.section of the act the duty of the custodian of primary, records is declared in the following language, to wit: “ The custodian of .primary records, shall, not later than twenty days, prior to, the holding pf any official primary, election provided for in this act, prescribe the size, color, weight and texture of the paper to be used for the ballots at such primary election and. prepare, samples thereof.- * *: The paper shall- be of such weight and texture as to make it impossible.to read or decipher the printed matter' on the inside of the ballot..when it, shall be folded. Each ballot shall have.printed mr written- upon. its. face - the- party name, the- assembly district or ward number if any, the election district number when the election district, is a. unit of representation,.the names of the positions to-be filled and the names, of the persons voted for to fill such- positions.”
The statute in prescribing thd size of the ballots seems to provide for printing matter thereon. It is in the following language, *319viz.: “.The size of the ballot shall be. large enough for the printing thereon of a complete set of names for all the positions to be filled, at such primary election. All printing thereon shall be in black ink.”
To enforce a compliance with the provisions of the section from which the quotation has just been made, further, and definite language is used in the provision which reads, viz.: “ Ballots not conforming to the provisions of this section shall not be counted at any official primary election.” This language seems to inhibit the use of ballots which in any way or manner do not conform to the provisions of the section, and seems broad enough to inhibit the u¿e of a ballot which has, in any way, been made to vary in size, color, weight and texture from the paper prescribed by the custodian. It seems, therefore, that a ballot which fails to conform to the size prescribed, or to the color prescribed, or to the weight'and texture of the paper prescribed by the custodian, ought not to be counted. Unless such effect is given to the language “ ballots not conforming to the provisions of this section shall not be counted at any official primary election,” an exact and strict obedience to the statute is not enforced.
In section I a further inhibition and regulation is prescribed, and it is in that section declared, viz.: “Ho ballot shall be in any way marked for identification.” The methods, the schemes, the inventions' for marking, for ' identification, of ballots, have been numerous and ingenious. It needs no argument to demonstrate that a ballot, the face of which has once been printed upon and covered with names of candidates for office, or for delegates, if covered by means of a paster, can be identified and distinguished from, one not so made to carry a paster,, and it is not too much to say as matter of law that a ballot that has once been used to carry the names in print of one set of delegates which is subjected to the further incumbrance of carrying names printed upon a paster, and that paster attached to the ballot, has been marked for identification. When such conclusion of law-is derivable from an- actual- inspection — from the physical condition of the ballot—it becomes the duty of the inspectors to declare that the ballot does not conform to the provisions of section 6; and it also, by that section, becomes their duty to declare that such ballots “shall not be counted at any official primary election.”
*320•In a subsequent section (§ 8) it is expressly provided, viz. : “All questions touching the validity of ballots or their conformity with the provisions of this act shall be determined by a majority vote of the board of primary inspectors.”
Therefore, it was the'duty of the board, or a majority thereof, to determine whether .the ballots conformed to the requirements of the statute, and it is. inferable from the provisions of the statute that it was the intention of the Legislature to declare ballots void that do not conform in every respect to the prescribed conditions. (People ex rel. Feeny v. Board of Canvassers, 156 N. Y. 36; People ex rel. White v. Aldermen, 157 id. 434.)
In.section 8 is found a provision, viz.: “ When a ballot is not void, and a primary election inspector or a duly authorized watcher shall, during the canvass of the-vote, declare his belief that any particular ballot has been written upon or marked in any way for the purpose of identification, the inspectors shall write on the back of such ballot ‘ objected to because marked for identification,’ and shall specify over their signatures upon the back thereof 'the mark or markings upon such ballot to which objection is made.”
Whenever the inspectors shall reject' “ as void ” any . ballot, it is made their imperative duty to write “ the reason for such rejection ” on the back thereof. Such writing thereon is to be by the chairman of the inspectors or by an inspector designated by him.
In section 11 of the act, jurisdiction is conferred to review “ Any action or neglect of the officers or members of a political convention or committee, or'of any inspector of primary election, or of any public officer, or board, with regard to the right of any person to participate in a primary election * * And it is expressly declared by statute that the review may be by mandamus or certiorari. Further power is conferred upon the Supreme Court or any justice thereof within the judicial district, or any county judge within his county; and it is expressly declared in the statute that such court or such officer “ shall have summary jurisdiction .upon complaint of any citizen, to review such action or neglect.” =
The statute provides that the court or officer reviewing such action or neglect shall consider, “ but need not be controlled, by any action or determination of the regularly constituted party authorities upon the questions arising in reference thereto, and shall make such *321decision and order as, under all the facts and circumstances of the case, justice may require.”
When the parties appeared before the Special Term which made the order which is brought here for review, there seems to have been a full and free presentment of the questions arising in respect ' to the ballots mentioned in the proceedings and a submission of the questions for determination; and although the petition was not as full and ample as it might' have been made, the record shows that the questions that are now sought to be reviewed were raised in the Special Term and determined by it. Before that determination was made the learned justice who presided patiently heard and deliberately considered all the questions that are necessarily involved in the decision which we are called upon to review. A clear and able opinion was prepared and delivered at Special Term and fortified with authorities applicable to some of the questions involved in the reasoning, given, and that opinion, and the views already expressed, lead me to the conclusion that the action of the Special Term should be sustained.
Order reversed and injunction. vacated, without costs to either party.