People ex rel. Hirsh v. Wood

• Decision Date: 19 December 1895
• Citation: 148 N.Y. 142,42 N.E. 536
• Parties: PEOPLE ex rel. HIRSH v. WOOD et al.
• Court: New York Court of Appeals Court of Appeals

148 N.Y. 142

42 N.E. 536

PEOPLE ex rel. HIRSH

v.WOOD et al.

Court of Appeals of New York.

Dec. 19, 1895.

Appeal from supreme court, special term, Queens county.

Application by Hugo Hirsh for a writ of mandamus. From an order of the general term, filed without opinion, affirming the order of the special term (36 N. Y. Supp. 19) denying the writ, relator appeals. Affirmed.

Henry A. Monfort, for appellant.

Elihu Root and Harrison S. Moore, for respondents.

ANDREWS, C. J.

This appeal is from an order denying the relator's motion for a writ of mandamus requiring the county board of canvassers of Queens county in canvassing the votes cast in the county at the last general election to reject from the count all votes cast for justices of the supreme court at the election by means of or by voting the ticket of the ‘Regular Democratic Party of Queens County,’ for the reason that no nomination of any candidates for those offices was made by the party, and that no vote for any candidates for those offices could legally be cast by the use of such ticket. The moving papers allege that 681 votes of the character mentioned were cast at the election in 10 election districts of Queens county by the use of the tickets of the party named for justices of the supreme court whose names were printed in the column of that party, and that no nomination had been made by that party of candidates for those offices, but it had only nominated candidates for county and local offices. They further show that in many other election districts in the county similar tickets were voted and that ‘in some instances the ballots by which said votes were cast appear to have been objected to, and are returned as marked ballots.’ The facts are undisputed. The Regular Democratic party of Queens county was a faction of the Democratic party, and duly nominated local candidates, but made no nominations for state or judicial offices. The county clerk, nevertheless, having knowledge of the fact that that party intended to support the candidates of the Democratic party for state and judicial offices, inserted in the official ballot, under its party name and emblem, the names of those candidates as well as the names of the local candidates it had nominated. We have decided at the present term, in the case In re Madden, 42 N. E. 534, that this action of the clerk was unauthorized, and that he had no right to insert in any party column any names except those of candidates duly nominated and certified by such party. The question is presented as to the effect of such unauthorized action by the county clerk upon the votes cast for justices of the supreme court by the use of the tickets of the Regular Democratic party. No suggestion is made that the persons who voted the ballots were not duly-qualified electors. The ballots used were official ballots, provided by the county clerk, whose duty it was, under the law, to prepare, print, and distribute them to subordinate officials, whose duty in turn was to place them in the hands of the inspectors of election of each election district in the county for use at the election. The printed indorsements, including the authentication by the county clerk required by the election law, appear in due form on the outside of the ballots. The ballots were regular in form in every respect. There was nothing within or upon the ballot from which a voter could know that the ballot was not made up in exact conformity to the law. It was impossible for him to ascertain from an inspection that the candidates for state and judicial offices, printed in the column of the Regular Democratic party, had not been regularly nominated by that party, or that the clerk, in arranging and printing the ballot, had not inserted the names with full authority. The effort in this proceeding is to disfranchise innocent voters because of a latent defect in the official ballot furnished by the state, not discernible on inspection, which ballot they were compelled to use; the defect consisting in the unauthorized insertion therein by a public official, charged with the duty of making up and printing the ballots, of names of candidates in a party column not duly nominated by such party. The intention of the voters who used this party column to express their choice is clear, and admits of no doubt. Each one received his ballot from the inspectors, marked it with the cross under the party name and emblem, and returned it to the inspectors, by whom it was deposited in the box, and subsequently counted. We can conceive of no...