This is an appeal from an order made at a special term, upon the relation of Henry'Bradley and others, directing a peremptory mandamus to issue against the defendants and appellants, composing the board of town canvassers of the town of Minerva, Essex county, directing them to reassemble in said towui, as such canvassers, and declare the result of a town meeting held therein on the 1st day of March, 1892, allowing to the several relators the number of votes cast for them stated in the moving affidavits, and called “paster ballots,” and directing said board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such paster ballots. From the papers the facts appear to be substantially as follows: On the 24th day of February, 1892, a caucus or primary was held in the town of Minerva, Essex county, for the purpose of nominating candidates for town offices, and a ticket was nominated, headed by William H. Sullivan for supervisor. On the evening of the same day another caucus or primary meeting, called an “independent caucus” was held in the same town, apparently by those dissatisfied with the result of the first caucus, and a ticket for town offices was nominated, headed by the relator Henry Bradley for supervisor; certificates of both nominations were filed with the town clerk. A protest was filed with the town clerk against his printing or delivering to the election officers any ballots for the ticket nominated at such independent or second caucus, on the ground that “no votes were cast in the town of Minerva at the last annual election or town meeting representing any party such as required by law, giving them authority to call a caucus to make nominations; second, the so-called certificate of nominations is not'sworn and certified to as required by law, and is not proper in form.” The town clerk only delivered to the election officers official ballots containing the names of candidates nominated at the first caucus, which, for convenience, we will designate the “Sullivan ticket.” The relators, composing the “ Bradley ticket, ” ascertaining that no official ballots would be distributed *303with their names on, caused paster ballots to be printed. These paster ballots, in addition to the names of candidates for other town offices, contained the name of their candidate for excise commissioner. The statement of result shows that 99 ballots were cast for Sullivan for supervisor, the other candidates on his ticket receiving from 96 to 107, and that Bradley received 110 votes for supervisor, his associates receiving from 107 to 116 votes. The votes for the several candidates on the Bradley ticket were all cast by means of the paster ballot before described, the same appearing to have been voted by pasting them on the official ballot containing the names of the candidates on the Sullivan ticket. The defendants refused to count any of the votes for the Bradley ticket. The objections made to canvassing or counting the vote for the Bradley ticket are these: (1) That the candidates on the Bradley ticker were not regularly placed in nomination pursuant to sections 2, 3, or 5, c. 262, Laws 1890, known as the “Ballotlteform Law,” and that therefore they were not legally candidates, not entitled to be voted for, and not eligible to office at the said town meeting; (2) because the paster ballots containing the names of the candidates on the Bradley ticket for town offices contained, in addition thereto, the name of a candidate for excise commissioner. There was the additional objection made to counting some' of such paster ballots, how many is not stated, that they were pasted upon the outside of the official ballot.
So far as appears from the papers in the case, the ballots deposited or voted were, so far as their exterior is concerned, in proper legal form, and it was the duty of the defendants to have counted them, no matter what defects appeared upon the inside when they were opened. Inspectors of election and boards of canvassers have no business to decide whether a person voted for is eligible or not; it is their duty to count the votes cast for any and every person whose name appears upon a ballot printed and indorsed as the law directs. There is a procedure provided in the law for ballots that are for any reason defective that will be referred to later on. While it was the duty of the inspectors to count all the ballots in controversy here, and leave to the courts the office of determining the legal questions involved, they have not done so, and the court must meet the questions as they are presented. The first objection made to counting the votes cast for the Bradley ticket, that such ticket was not legally nominated, and that therefore they were not eligible as candidates, is not tenable. The ballot law was not intended to restrict the choice of the people; it was intended, on the contrary, to secure to them greater freedom and independence in voting,—to insure to them the utmost freedom in their choice of public officers. The title of the law is “An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.” To restrict the voter to the candidates placed in nomination by political parties, or by petitions of citizens, is very far, it seems to me, from promoting independence in voting, and the law makes no such restriction, but provides for the very reverse. Section 25, c. 262, Laws 1890, as amended by section 12, c. 296, Laws 1891, is in part as follows: “The voter may write or paste upon his ballot the name of any person for whom he desires "to vote for any office. Any voter may take with him into the voting booth or compartment a pasted ballot of his own selection or preparation, to be known as a ‘paster ballot,’ containing the names of all the offices to be filled, and of the candidates therefor for whom he desires to vote, * * * and the voter may paste the whole of said paster ballot on any of the official ballots. ” It will be observed that the statute says the voter may vote for any person for any office; and it recognizes the fact that he may desire to vote for some person or persons whose name is not upon any of the official ballots, and provides that he may write or paste it on. It also affords him the means of making *304up an entire ticket to suit himself, of names not upon the official ballots, by means of the paster ballot. The official ballot is simply a part of the machinery devised to insure secrecy and independence in voting, is printed at public expense to insure uniformity in the ballots, and to save candidates the expense of printing, and thus cut off one reason or excuse for raising money to be used, in fact, for corrupt purposes. While the law provides for official ballots it does not provide for official candidates, and it is not necessary that one’s name should appear upon the official ballot to enable the voters to vote for him.
The.second objection to counting the Bradley ballots, the fact that the name of a candidate for excise commissioner was printed with the other town offices on the paster ballot, presents greater difficulties. ■ The votes cast for such candidate for excise commissioner cannot be counted for him, because not upon a ticket legally indorsed, as an excise ballot, as held by this court in the case of People v. Person, 19 N. Y. Supp. 297, (decided at this term.) The serious question is, did the printing the name of the office of excise commissioner, and of a candidate therefor, upon the ballot, vitiate the ballot as to the candidates for other town offices? In a sense, the unauthorized printing of the name of-this office and the candidate therefor upon the town ballot made it a marked ballot, or a defective ballot,- but that does not, of itself, vitiate the ballot, or justify the inspectors of election or board of canvassers in rejecting it. It is only when it is marked with the intent that it may be identified that it is to be rejected, and that rejection is not to be by the inspectors. Section 16, c. 296, Laws 1891; provides that such ballots shall be preserved with a statement of the objections made to them, that they shall be counted in estimating the result of an election, and then provides for a judicial proceeding to determine their validity. The ballot is not to be excluded until the intent is ascertained and determined by the court. Nichols' Case, 129 N. Y. 407, 29 N. E. Rep. 327. The only reason that is assigned for excluding these ballots from the estimate of votes is that they are, in effect, marked ballots; but the law assumes that there may be ballots with marks upon them that may be counted, otherwise why preserve them for the court to say whether they shall be counted or not? If all marked ballots are to be rejected, if the fact that some mark, name, or word, not authorized by law, appears on the inside of a ballot is-of itself the evidence and proof that it was placed there with the intent that the ballot may be identified, there would be no obligation in preserving the ballot for the court; there would be nothing for the court to pass upon, nothing to determine, except that there is something on the ballot not authorized by law. It seems to me that the .plain meaning and intent of the statute is that the court shall determine whether the mark on the ballot is placed there with the intent of subsequently identifying the ballot and tracing it to the voter; and if it can find no such intent, then the ballot is to remain as counted. I realize the- difficulties that must necessarily arise from such a construction. Proof of a fraudulent intent must always be difficult, and sometimes impossible, and permitting any ballot to be counted that has anything upon it except what the law authorizes doubtless opens the way to marking it with intent to identify the voter, The other construction—that is, rejecting every ballot having anything upon it not authorized by law, without any further proof of intent—is also subject to serious objections, and would open the door to just as great dangers. The ballots may be marked by the adverse party for the very purpose of having them rejected; dishonest election officers may mark them to afterwards reject them in the count; and then, having marked and rejected them, immediately destroy them, as was done in a case recently before us, leaving no trace of their wrong-doing, nothing for the court to pass upon. Such a construction would place our elections completely in the hands of the innumerable boards *305of inspectors in the state; the rejection of a few ballots in eacli election district, or even a portion of them, changing the result of a state election. Upon the whole, it seems to me that the safest course is to leave nothing for the inspectors to do except to count the ballots in the box. They are prohibited from receiving any having any mark on the outside or not properly indorsed, and if anything appears on the inside of the ballot not authorized by law to preserve such ballot, then those interested have ample opportunity to deliberately investigate the matter, and after such investigation, if they think proper, present it to the court for its determination. But whichever course may be best is not for the court to determine. It cannot legislate, it can only interpret and construe; and I cannot see any other interpretation or construction to be given to the statute except the one I have indicated, that is, for the court to determine in each particular case whether the marks or unauthorized words were placed upon the ballots with intent to identify the voter. Was, then, the name of a candidate for excise commissioner placed upon the town ballot for the purpose of identifying the voter? There is nothing in the case before us to show that it was. All the ballots for the Bradley ticket were alike in that respect; the same candidate appeared on all the ballots, and, so far as the case discloses, there is nothing to indicate any unlawful or corrupt intent, except the bare fact that the name of such candidate appeared, not upon a ballot indorsed “Excise,” as the law requires, but on the paster ballot for other town offices; and, so far as appears in the case, they had no separate ballot for excise commissioner. To hold, under such a state of facts, that these ballots were marked for the purpose of identification, within the meaning of the law, would be to hold, in effect, that, whenever any name, word, or mark not authorized by law appears upon a ballot, that fact, in and of itself, is evidence that it was placed there with the intent of subsequently identifying the voter. Such a holding or construction, we have already seen, is not warranted by the wording of the statute. I therefore cannot find that the paster ballots in question were printed or marked with the intent that the same might be identified, consequently they should not be rejected for that reason.
The remaining objection to be considered is that some of the Bradley paster ballots, how many does not appear, were pasted on the outside of the official ballots. If the paster ballot is so affixed to the official ballot as to disclose for' whom the voter is voting, then the ballot should neither be received nor counted, because then it would be in violation of the secrecy of the ballot, and would afford a means of identifying the voter; but in this case it does not appear whether it was so affixed or not. The provisions of the statute are as follows: (1) That it shall be pasted on the side opposite the official indorsement. “(2) A paster shall be so attached to the ballot that when the ballot is folded no portion of such paster ballot shall be visible. ” Section 12, c. 296, Laws 1891. A voter should not be deprived of his vote except at the behest of some plain and clear requirement of the law. Beading the two clauses I have quoted together it seems to me that the first one is directory merely; that the essential and therefore the mandatory one is the second,—. that is, the one that requires that it should be so attached as not to be visible. The case does not show whether the paster ballots in question were so attached as to be visible or not, and the court has no right to assume that the law was violated. There is not sufficient evidence before us to warrant the court in rejecting the ballots for the manner in which they were attached to the official ballots. Some of the affidavits state that some of the Bradley ballots were marked for identification, but do not state how they were so marked, or how many there were of them, and they have not been preserved as the law requires, so that we have nothing before us to pass upon or determine in that regard. This disposes of all the objections made to counting the Bradley ballots, and we find in none of them any sufficient reason for re*306jecting such ballots. Let the order for a peremptory mandamus be affirmed, with $50 costs, and printing disbursements.
Putnam, J., concurs.