Noyes v. Bd. of Canvassers of Chemung Cnty.

• Decision Date: 02 June 1891
• Citation: 126 N.Y. 392,27 N.E. 792
• Parties: PEOPLE ex rel. NOYES v. BOARD OF CANVASSERS OF CHEMUNG COUNTY.
• Court: New York Court of Appeals Court of Appeals

126 N.Y. 392

27 N.E. 792

PEOPLE ex rel. NOYES

v.BOARD OF CANVASSERS OF CHEMUNG COUNTY.

Court of Appeals of New York.

June 2, 1891.

Appeal from supreme court, general term, fourth department.

EARL, J., dissenting.

ELECTIONS AND VOTERS-CANVASSING BALLOTS-STATEMENTS BY INSPECTORS.

Laws N. Y. 1842, c. 130, tit. 4, s 42, (1 Rev. St., 8th Ed., p. 421,) requires the inspectors of election to attach to their statement of the result of the canvass of the votes cast in their respective districts sample ballots, with indorsements partly on the ballot and partly on the paper to which it shall be attached, stating the number of each kind voted. Section 44 provides that the statement shall show the whole number of ballots taken for each person, designating the office for which they are given, and that at the end thereof shall be a certificate subscribed by the inspectors that the statement is in all respects correct. Title 5, s 6, provides that the board of county canvassers shall estimate the votes of the county from ‘the original statements of the canvass in each district.’ Held, that the board of county canvassers must estimate the votes from the statements made and certified to by the inspectors, and not from the indorsements on the sample ballots attached to the statements. Affirming 14 N. Y. Supp. 914.

Hamilton Harris and Frederick Collin, for appellants.

W. A. Sutherland, for respondent.

O'BRIEN, J.

The supreme court, upon the application of the relator, has made an order directing that a peremptory mandamus issue to the board of supervisors of the county of Chemung, constituting the board of county canvassers, commanding them forthwith to reassemble and reconvene, recanvass and retabulate, and forward to the secretary of state a true and correct canvass and statement of the result of the last general election, so far as the same relates to representative in congress in six of the election districts of the city of Elmira. The board was further required to make the estimate and tabulated statement from the face of the original returns of the inspectors of election in these election districts, instead of from the ballots on the back thereof. The order directing the writ was made after the board of county canvassers had canvassed the votes given for all officers voted for at the general election held in the county, including the vote for representative in congress for the twenty-eighth congressional district, of which the county composed a part, and had filed a certified statement of the result of such canvass in the office of the county clerk of the county and the secretary of state, as required by law. The relator claims that the board did not comply with the statute in making the canvass, and that the result of the vote, in respect to representative in congress in the six election districts so made, certified and filed by them, is not correct. Before examining the question involved in the appeal from the order, it is proper to notice a preliminary question. The record submitted to us is accompanied by a motion to the court, made upon notice and affidavits, from which it appears that the board of state canvassers, in pursuance of the statute, met and organized as such board at the office of the secretary of state on the 5th day of December, 1890; that they then and there proceeded to canvass, and did canvass, the vote given for officers at the preceding general election, including representative in congress for the various congressional districts of the state, from the returns and certified statement on file in the office of the secretary of state, made and filed by the various boards of county canvassers in the several counties; that the vote for representative in congress from the twenty-eighth congressional district was canvassed from the returns and certified statements received from the several boards of county canvassers of the county comprising the district, as certified and filed in the office of the secretary of state by the county clerk of the several counties; that there was but one return or certified statement from each county in the congressional district, and no protest or claim that any return on file and before the state canvassers was in any respect erroneous; that from the statement of the vote for congress, contained in the statements from the counties comprising the twenty-eighth district, it appeared that Hosea H. Rockwell had received the greatest number of votes, and was elected to that office. The board of state canvassers made a statement in writing of the result, duly signed, and filed the same, and delivered a certificate to said Rockwell of his election, in compliance with the statute. On these facts we are asked by counsel for Rockwell to stay all proceedings upon this appeal, on the ground that any decision that we can make will be entirely ineffectual; that there is no power to review or change the action of the state canvassers upon the returns before them, or to recall the certificate of election issued; that the only authority now competent to review the action of the state canvassers is the house of representatives, in virtue of its ultimate power, under the constitution, to judge of the election of its members. No good reason has been or can be given for staying the appeal at the request of the parties bringing it here, but, to my mind, there are cogent reasons for refusing to hear it, and disposing of the case by dismissal. The time and attention of this court is sufficiently occupied by the pressing demands of actual and practical litigation, and it ought not to be asked to listen to arguments and examine records involving questions purely abstract or theoretical, or when it appears that its judgments or decisions can have no practical effect upon the controversy. This seems to me to be a case of that character. But the court has arrived at the conclusion that we ought not to anticipate what may occur in the future in regard to the practical consequences of our decision, as a reason now for declining to hear an appeal regularly and properly before us. We do not know, from the record before us, what effect, if any, the method of canvassing the vote in the six election districts, adopted by the county canvassers, had upon the result as declared by the state canvassers. All we do know is that the principle adopted gave, in these districts, to Mr. Rockwell a few votes more, and to Mr. Noyes a few votes less, than the manner of canvassing directed by the mandamus. It is conceded that immediately after the close of the polls in each of the six election districts, on the 4th of November, 1890, the inspectors counted the vote for representative in congress in its regular order, publicly announced the result, inserted in words written at full length in the body of the certificate, the whole number of votes given for each candidate, certified the statement to be correct, and signed the same, and then dissolved as a board of inspectors and canvassers. The result thus announced and inserted in the certificate, in these particular districts, gave, in the aggregate, to Hosea H. Rockwell 458 votes, and to Henry T. Noyes 488 votes, for member of congress. The election was held under chapter 262 of the Laws of 1890, and it is possible that the inspectors may have been ignorant as to what parts of the law, governing the conduct of elections and the canvass of the vote, existing prior to that enactment, remained still in force. No facts appear in the record upon which intentional fraud or dishonesty can be imputed to them. That they were wanting in the knowledge necessary for an efficient performance of the duty imposed upon inspectors of election is quite clear. They failed to attach to the statement signed by them the sample ballots as directed by the statute, (1 Rev. St., 8th Ed., p. 421, § 42,) and they also failed to destroy the ballots voted, but carefully preserved them, some of the inspectors, apparently, being of the impression that they were required to file them with the county clerk. The inspectors' returns were presented the next day to the county clerk for filing in his office, but he refused to receive or file them, for the reason that no sample ballots were attached. The inspectors, or a majority of them, in each district, thereupon opened the sealed packages, in which the ballots voted were placed the night before in some of the districts, and the boxes in which they were locked up in others, recounted them, and attached in each case one of each variety cast to the return, and wrote, partly upon the ballot and partly upon the paper to which it was attached, in words, the number of such ballots voted, as required by the statute; and then the returns were delivered to the county clerk, and by him filed. These facts are common to five of the districts. In the other, the second of the First ward, the inspectors attached the sample ballots, with the statement thereon, to a new certificate, in which was written in the body thereof the number of votes cast for each candidate, as shown by the writing on the ballots, and which was four votes less for Mr. Noyes, and four votes more for his opponent, than announced and inserted in the paper the night before. The numerous affidavits embraced in the record contain many details touching the counting of the vote at the close of the polls and the event following, with possibly some shades of difference, none of which, we think, is important to notice here, as the foregoing statement is sufficiently full and accurate for all purposes of the question which we are to decide.

The controversy arises upon the conceded fact that there was before the board of county canvassers a certificate of the inspectors of election which contained one result of the vote for member of congress in the body of the paper, and another and different result in the writing on the attached ballots. The board canvassed and estimated the vote for member...