People ex rel. Deister v. Wintermute

• Decision Date: 05 January 1909
• Parties: PEOPLE ex rel. DEISTER v. WINTERMUTE.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 99

86 N.E. 818

PEOPLE ex rel. DEISTER

v.WINTERMUTE.

Court of Appeals of New York.

Jan. 5, 1909.

Appeal from Supreme Court, Appellate Division, Third Department.

Action by the People of the State of New York, on the relation of John H. Deister, against Thomas J. Wintermute. From a judgment of the Appellate Division, Third Department (127 App. Div. 933,111 N. Y. Supp. 1135), affirming a judgment at Trial Term, both parties appeal. Reversed, and new trial granted.

William S. Jackson, Atty. Gen., for the People.

Michael Danaher, for relator.

Richard A. Thurston, for defendant.

CULLEN, C. J.

The action was brought to determine the title of the defendant to the office of county treasurer of Chemung county. At the general election held in 1906, the relator and the defendant were candidates for that office, the term of the then incumbent of which expired on the 31st day of December ensuing. The defendant was the incumbent. The official canvassers awarded the office to the defendant by a plurality of two votes. The relator claimed the canvass was erroneous and that in truth he had received a plurality. On the trial of the action the following facts appeared: In the county of Chemung there were 45 election districts, 28 of which were in the city of Elmira. In that city were used at the general election of 1906 the United States Standard voting machines. Paper ballots were used in all the other districts outside of the city of Elmira with the exception of 4. The controversy in the case has been caused by the failure of the machines to properly register the votes of the electors. The failure of the machines to operate correctly arose from the following circumstances: In the machines the candidates of the various parties are put in columns, one after the other, for the respective offices to be filled at the election. Candidates for the same office, of different parties, are placed in their respective party columns, but opposite each other on the same horizontal line. Opportunity is given to vote a ‘split’ ticket by the use of a lever or knobs, and a device is employed which prevents the voter from voting for more than one candidate for the same office. Where, however, there are two or more vacancies in the same office to be filled, the elector may wish to vote for candidates who are on the same horizontal line. To enable him to do so, and also to prevent him from voting twice for the same candidate, instead of once for each of two candidates, another piece of mechanism is employed, which is called an ‘indorsement bar.’ These bars are not part of the ordinary mechanism of the machine, but are used only in cases where there are two or more vacancies in the same office to be filled. There were two vacancies in the office of judge of the Supreme Court in the judicial district which includes the county of Chemung. In three of the Elmira districts the inspectors or other election officials, through ignorance, failed to properly adjust or fasten the indorsementbars, the result of which was to affect the accurate working of the machine, not only with reference to the votes for the two offices named, but throughout the whole ticket, so that it does not seem to have properly recorded or registered the votes of the candidates for any office. The failure was one of omission rather than of commission; that is to say, the machine did not record votes that were not cast, but it failed to record votes that were cast, and from a test of the operation of the machine made at the trial the failure to properly adjust the indorsement bars seems to have affected the Democratic column, in which the relator's name was, much more seriously than the Republican column, in which was the name of the defendant. This defect in the operation of the machine was fully explained at the trial, but the details it is unnecessary to relate. In the First district of the Fourth ward the vote for the relator, as shown by the machine, was 27. On the trial the relator proved, by the testimony of 51 electors of that district, that they had voted for him at the election of 1906. Further testimony was given as to the failure of the machines to properly record the votes in two other districts. Testimony was also given on behalf of the defendant. At the conclusion of the evidence the relator asked that the question of who received the greater number of votes, he or the defendant, should be submitted to the jury for determination as a question of fact. The defendant asked that a verdict be directed in his favor that he was duly elected to the office. The trial court denied each request and held that on account of the failure of the voting machines to work there was no valid election for the office of county treasurer, but that the defendant was entitled to hold the office by virtue of his prior incumbency until his successor should be duly elected, and directed the jury to find a verdict to that effect. From the judgment entered on that verdict both parties appealed to the Appellate Division, where the judgment below was affirmed.

That an official canvass is only prima facie evidence of title to office, and not conclusive, may be said to be almost elementarylaw in this state (People ex rel. Van Voast v. Van Slyck, 4 Cow. 297;People ex rel. Yates v. Ferguson, 8 Cow. 102;People ex rel. Benton v. Vail, 20 Wend. 12;People ex rel. Eastman v. Seaman, 5 Denio, 409;People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451;People ex rel. Smith v. Pease, 27 N. Y. 45, 84 Am. Dec. 242;People ex rel. Stapleton v. Bell, 119 N. Y. 175, 187,23 N. E. 533), but in what manner and to what extent such canvass can be impeached presents the question argued before us. The first question, and that most elaborately argued by the learned counsel for the defendant, is as to the admissibility of the testimony of the electors to show how they voted at an election. He contends that to allow such testimony is to violate the secrecy of the ballot, and insists that the question is still an open one in this state. The claim that the question is an open one is clearly untenable. It has long since been settled in this state by authority. The first Constitution of the state (1777) directed the Legislature, as soon as might be possible after the termination of the Revolutionary War, to pass an act for holding all elections by ballot. Section 6. The Constitution of 1821 required all elections to be by ballot except for town officers. Article 2, § 4. The provision of that Constitution was re-enacted in the Constitution of 1846 (article 2, § 5), and again in that of 1895, in which last, however, there is added, ‘or by such other method as may be prescribed by law, provided that secrecy in voting be preserved.’ That the object of this addition in the last Constitution was not to create any greater safeguards for the secrecy of the ballot than had hitherto prevailed, but solely to enable the substitution of voting machines, if found practicable, is too clear for discussion. Therefore the older decisions of our courts have lost none of their authority by reason of any change in the Constitution. People ex rel. Yates v. Ferguson, 8 Cow. 102, was quo warranto to try title to the office of clerk of Montgomery county. The relator's name was Henry F. Yates, and he was at times called Frey Yates. The canvassers refused the relator votes cast for H. F. or Frey Yates. On the trial of the action the circuit judge excluded the testimony of voters to the effect that in voting for H. F. Yates or for Frey Yates they intended to vote for the relator. A verdict was rendered for the defendant, on which judgment was entered. That judgment was reversed by the Supreme Court, which held that the witnesses should have been allowed to testify. In that case no point seems to have been raised that the testimony would violate the secrecy of the ballot. Again, in People v. Cook, 8 N. Y. 68, 59 Am. Dec. 451, testimony was admitted to prove that by votes for Benjamin C. Welch, Jr., or Benjamin Welch, the electors intended to vote for Benjamin Welch, Jr. Again, the point that such evidence violated the secrecy of the ballot does not seem to have been raised. But in People ex rel. Smith v. Pease, 27 N. Y. 45, 84 Am. Dec. 242, despite a vigorous opinion by Chief Judge Denio, which forcibly urged everything that could be said in support of that objection, the objection was overruled and the testimony held competent. It was sought to reargue the question in People ex rel. Judson v. Thacher, 55 N. Y. 525, 14 Am. Rep. 312, but the court adhered to the doctrine of the Pease Case; Judge Andrews saying: ‘The right to examine voters in an action in the nature of a quo warranto is in affirmance and vindication of the essential principle of the elective system that the will of the majority of the qualified electors shall determine the right to an elective office.’ Page 535 of 55 N. Y. (14 Am. Rep. 312). It is true in the Thacher Case this declaration was obiter, for the disposition of the case proceeded on another ground. Since the Thacher Case, 35 years ago, the doctrine of the Pease Case has never been questioned. It has been accepted as the settled law of the state, not only in quo warranto proceedings, but in criminal prosecutions against election officers, and such officers have been convicted and punished on the strength of such testimony. Nor can the Pease Case be distinguished from the case at bar. True, in that case it was sought to show that persons who had voted for a certain candidate were not qualified electors, while here it is sought to show that the vote of the elector was not counted; but the purpose for which the testimony was offered has no bearing on the question of its admissibility, since the only ground for excluding it is that it infringes on the secrecy of the ballot, an objection equally applicable to every purpose for which the testimony might be offered. We must therefore decline to treat the question as still...