People ex rel. Stapleton v. Bell

Landon, J.

The relators and the defendants are inspectors of election, and together composed the board of inspectors for the-election district, in the ninth ward of the city of Troy at the last general election. Upon the close of the polls on the day of the election, the board thus constituted counted the ballots, canvassed the votes, and proclaimed the results in that district. Thereupon such results were correctly stated in returns in the form required by law, and the relators signed the returns, but the defendants refused, and still refuse, to sign them. The special term by mandamvs directed the defendants to sign the returns, and the defendants appeal from the order. The order should be affirmed, unless the facts alleged by the defendants in justification of their refusal amount to a sufficient justification. They make affidavits in their justification that, “during said election, to deponents’ knowledge, there were at least seventy fraudulent votes offered at said polls. By fraudulent votes deponents mean that persons who did not reside within said election district, and who were not registered, and who were not entitled to vote, appeared before said board and fraudulently and falsely represented themselves to be registered voters, which they were not, to deponents’ knowledge. Upon offering said fraudulent votes deponents would object to their receipt, said persons were challenged and sworn, and their answers were unsatisfactory. In many cases opportunity was not given to deponents to question the voters, and the said ballots were not, nor was any one of them, received by said board, or a majority thereof. Although said ballots were not received by the bqard, and were not given at said election, nevertheless the said Hassett and Stapleton, the other members of said board, contrary to the protest of deponents, took said ballots that were not given by any voter, and were not received by the board, and put said fraudulent ballots into the ballot-boxes in charge of said board at said election. Deponents are prepared to prove each one of the allegations herein made by reliable witnesses. Deponents did not sign the returns referred to in the moving affidavits herein, for the reason that the same are incorrect. There were not given in said district the number of votes therein named, and there were not received by the various candidates the number of votes therein stated, in that there were upwards of 70 votes, before referred to, that were put into said boxes contrary to the protest of deponents, and without said ballots having been received by the board, or a majority thereof. ” Upon the oral argument counsel for defendants stated that the defendants knew or believed that these 70 votes were deposited by persons who falsely personated persons whose names were on the registry of electors for that district. Giving to the affidavit this construction, it is proper to examine and ascertain whether the affidavit shows that any of these votes were illegally received. The persons offering them were challenged and sworn, and made answer. Their answers were not satisfactory to the defendants, but that is very far short of a statement that their answers were not as full and complete as the law requires.

The case of the defendants rests upon the position that the defendants were acting judicially, and that upon hearing the answers of the persons challenged, if defendants did not believe what they swore to, or, from their own knowledge of the men and of the facts, believed that they committed perjury, they had the right to decide the case in conformity with their own knowledge and belief, in disregard of the sworn statements of the persons offering to vote. In our opinion, such is not the law. The election laws of this state have been framed with the intent to prescribe, as fully as necessary, the tests by which the right of a person to vote shall be determined, and to leave as little as possible to the discretion or judgment of the inspectors of election. These officers, as their name implies, are inspectors, and not judges, of the election. The intent of the statutes is that the inspectors shall follow the directions prescribed, and that by so doing the right to vote of any person whose right is challenged will thereby be determined; that is, the fact will be so manifest that the inspectors cannot fail to perceive it. Thus, prior to the day of election, the persons entitled to vote'must be registered. This is not conclusive in their favor, but, if the name of any person is omitted or stricken from the registry, the absence of his name from the registry on election day is conclusive against his right to vote. Chapter 576, §§ 6, 20, Laws 1880, applicable to the city of Troy. When a person offers his vote, manifestly the first duty of the inspectors is to look for his name upon the registry. If it is not there, his vote must be rejected. But in the case before us the persons whose votes are under consideration gave names which were found upon the registry. The defendants, we presume, challenged these persons because they did not believe them to be the persons of the names they gave, or the persons actually registered. The statutes prescribe a preliminary oath, (Election Code, § 260, Laws 1842; chapter 130, tit. 4, § 13;) and, if the questions put to the challenged person under that oath are not fully answered, his vote may be rejected, (Id. §§ 261, 262.) The defendants’ affidavit does not state that these questions were not fully answered, but does state that the answers were not satisfactory to them. We must presume that the answers were full, but the defendants believed they were false. If the defendants could point out in any respect the qualification in which the challenged person appeared to them to be deficient, it was their duty to do so, (Id. § 263;) and then, if he persisted in his claim to vote, the general oath should be administered to him, (Id. § 264.) The defendants allege that they were not, in some cases, given by their associates-an opportunity to question the voters; but they do not allege that any statutory question was withheld by the inspectors who did question them. We must presume that all the questions proper to be asked were asked, and that the answers were full. The answers made by the persons taking these oaths were made under the penalties denounced by these statutes against perjury. The questions permissible are comprehensive enough to embrace fully the fact of the identity of the person challenged with the registered person, whose name he gives as his own. Besides section 7, c. 576, Laws 1880, provides that “every elector at the time of offering his vote, shall, if required, truly state the street in which he resides, and, if the house, lodging, or tenement in which he resides is numbered, the number thereof; * * * and in case of refusal to make the statement, as aforesaid, the vote of such elector shall not be received.” This statement is not required to be made upon oath, but its truthfulness is thus exacted: “Any person who shall willfully make any false statement in relation thereto shall be deemed guilty of a misdemeanor, and shall, upon conviction, be punished with a fine of fifty dollars, or by imprisonment in the county jail * * * for a period of ten days, or by both such fine and imprisonment.”

The statutes having carefully prescribed the tests to determine the right of any person to vote, the proposition that the inspectors can, in addition thereto, prescribe or impose such other and further tests as they may deem adapted to the particular case before them, is wholly inadmissible. If the person offering to vote does comply with the statutory tests, the inspectors’ disbelief in his honesty or identity must yield, and the vote should be received. There is no allegation that these 70 voters did not comply with the statutory tests, and hence the conclusion follows that their votes were lawfully received, whether the defendants were or were not satisfied; and, having been received and counted, the proper returns should be made and signed. It is, however, urged that these ballots were not “received,” because the defendants did not-consent to their deposit in the ballot-box. To test this question, suppdse one of these voters should sue one or all of the inspectors for refusing to receive his vote. He certainly would be defeated, upon the facts here presented, showing its receipt. The proposition that, if the inspectors know, of their own knowledge, that the person offering to vote is not the person actually registered, they may disregard his statement and oath, and reject his vote, is open to other objections. The presumption is that the statements made upon oath are true, and that the accused voter is innocent until he is proved to be guilty. It is plain that the inspectors who disregard the oath of the voter, and condemn him as perjured upon their own knowledge, or upon their confidence that they have knowledge, deprive him of the opportunity to prove before the proper tribunal that they are mistaken or ignorant; in other words, deprive him, without due process of law, of the right which he has established according to the forms of the law, and that they thus arrogate to themselves a jurisdiction which the election laws do not confer upon them, and which the constitution seems to forbid. It would be an extraordinary law which should assume to clothe the inspectors of elections with judicial functions, and then add to such functions the power to consider their personal knowledge of the facts, as paramount and conclusive evidence of them. Such judges, thus empowered, would need to be highly endowed with intelligence and virtue. If the inspectors of election are such judges, then, in the final test, the right to vote does not depend upon the written law, but upon the secret consciousness of the inspectors. It is easy to believe that partisan inspectors might not rise to the high requirements of their office, and that, if a choice of evils is to be made, reliance upon the law is the lesser evil. We admit that no person can lawfully acquire the right to vote by the false personation of another, or by perjury; for these act's are crimes. We admit, also, that every person who-sees another engaged in committing a crime may reasonably interpose to arrest and prevent it; but he takes upon himself every risk of mistake, and of course the burden of proving before the proper tribunal, if prosecuted, that his interposition was warranted because of the attempted criminal acts of the-other. It is true that no person abdicates his personal rights by accepting the office of inspector of election; but it is also true that in this proceeding we-cannot try any such issues between the inspectors and the accused voters. The latter are not present as parties, and are not heard in their own behalf.The issues are not made. Besides, the votes were received and not rejected.If they had been rejected, only those received could be returned.

The defendants believe that some of the votes were illegally cast. Belief is: not proof. To reverse the order appealed from would be to suppress the vote-of the district, and to invite occasion for like suppression in the future in other districts. If any person, aggrieved by the returns, desires a judicial investigation as to the illegality of any of these votes, the law prescribes the procedure. The law prescribes the punishment for illegal voting. The votes received must be returned. It follows that the order appealed from should be affirmed.

In the five other cases herewith argued the orders appealed from are also affirmed.

XiEABned, P. J., concurs.