Stapleton v. Bell

• Decision Date: 28 January 1890
• Citation: 119 N.Y. 175,23 N.E. 533
• Parties: PEOPLE ex rel. STAPLETON et al. v. BELL et al.
• Court: New York Court of Appeals Court of Appeals

119 N.Y. 175

23 N.E. 533

PEOPLE ex rel. STAPLETON et al.

v.BELL et al.¹

Court of Appeals of New York.

Jan. 28, 1890.

Appeal from supreme court, general term.

The relators and the defendants were the members of the board of inspectors of election appointed for the district of the city of Troy. The defendants refused the affix their signatures to the election returns, and these proceedings were instituted by the relators to compel them to perform that act. No issue is made as to any material allegation of fact in the moving papers; but the defendants allege that fraudulent personations of registered voters were made at the polls by non-resident and nonregistered persons, and such votes were offered and were received over their objection. They admit that after such persons were challenged they were sworn, but say their ‘answers were unsatisfactory,’ and they allege that the ‘ballots were not received by said board, or by a majority thereof.’ A peremptory writ of mandamus was ordered at special term, (7 N. Y. Supp. 701,) and from the order of the general term affirming the proceedings the defendants have appealed to this court.

ELECTIONS-CONDUCT-CHALLENGES-DUTY OF INSPECTORS.

Under Gen. Election Law N. Y. tit. 4, art. 2, s 7, which provides that each elector shall deliver his ballot to one of the inspectors, in presence of the board; that if challenged an inspector shall administer an oath to him, and ask him certain prescribed questions; and that if the challenge shall not be withdrawn the inspectors shall administer to the elector a general oath, in which he states in detail that he possesses all the legal and constitutional requirements; and that if he refuse to take such oath his vote shall be rejected,-the inspectors being ministerial officers, have no discretionary power to reject the vote of an elector who has answered the statutory questions, and taken the prescribed oaths, even though he has failed to satisfy them as to his qualifications.

G. B. Wellington, for appellants.

R. A. Parmenter, for respondents.

GRAY, J., ( after stating the facts as above.)

The record before us shows that the question which it presents has received a careful consideration in the courts below; and we might leave the discussion there if it were not a question which, as concerning the powers of inspectors of elections in holding state elections, affects the right of suffrage, and therefore is of public interest. The precise claim of the

FN1 Affirming 41 Hun, 642, mem. officers are clothed with a discretionary power to reject the ballot tendered by a proposed elector, not withstanding he may have satisfied the tests prescribed by law, by taking the oaths, and fully answering the questions put to him, if they doubt his identity with the registered elector, whose name he gives at the polls. In other words, that they may act, nevertheless, upon their own private opinions and knowledge. That claim arrogates to them judicial powers; and support for it must be found in the law regulating elections, either in express words or as implied from being necessarily incidental to the office, and to the proper exercise of its duties.

The right of suffrage is one of the most valuable and sacred rights which the constitution has conferred upon the citizen of the state. About it have been erected many safeguards, with the object of securing to each qualified elector the fullest and freest exercise of his constitutional privilege, and also of obtaining the greatest protection against the perpetration of frauds at the polls which shall be consistent with a certainty that every person entitled to vote shall have his ballot received, deposited, and counted. It may properly be observed in this connection that, in addition to the legal requisites, the public nature of the proceedings, through which the elector entitles himself to cast a ballot, and the public manner in which he presents himself to cast it at the polls, are features in our elections which tend to minimize the possibility of false personations, and other fraudulent practices, in elections. I think it would be a far greater menace to the security of this constitutional right if the law regulating its exercise might prevent the vote of a citizen, duly qualified to cast it, from being received and counted, than that some fraud might be practiced by a false personation; for in the one case there would be the disfranchisement of the elector, while in the other, for the wrong done to the people or to the individual, penalties and remedies are provided, and tribunals exist for their enforcement against a wrong-doer, and for the establishment of the right.

There are no complex features in this case, and it can be briefly stated. At the last general election in this state the two relators and the two defendants composed the board of inspectors of election; the former being the Democratic, and the latter the Republican, members thereof. After the closing of the polls the inspectors counted the ballots which had been cast, and the results of the counting were thereupon proclaimed. But to the election return, containing a statement of such results, the defendants refused to affix their signatures as required by law. In opposition to the application of the relators for an order compelling them to sign the return, the defendants objected, in substance, that fraudulent votes were received during the election from persons falsely personating registered voters, and who were not themselves registered; that upon their votes being offered their receipt was objected to, the ‘persons were challenged and sworn, and their answers were unsatisfactory;’ that said ballots were not received by the board, or by a majority thereof, but were taken and deposited by the relators in the ballot-boxes contrary to the protest of the defendants. It does not appear, however, that any minute or record was made of such attempts or objections, although the affidavit of the defendants states some what indefinitely that ‘at least seventy fraudulent votes were offered at the polls.’ The allegation was not put in issue by any denial, and we must take it to be true. The gravity of the offense cannot be overrated, and calls for the severest expressions of condemnation. Such practices are as dangerous to the rights of citizens as they are odious, and, when suffered to go unnoticed and unpunished, reflect disgracefully upon the community. If unchecked by punishment, the electoral franchise is subjected to further attacks by dishonest partisans, emboldened by past immunity to themselves or others, to affect the result of elections by fraudulent personations and other devices. But we are confined in our discussion here to the legal question of what exercise of powers is permitted under the existing laws. We must assume that the person whose right to vote was challenged submitted to all the statutory tests prescribed by the law in such cases; for the appellants concede that he was ‘sworn,’ and only allege that his ‘answers were unsatisfactory.’ They did not claim that his answers were not full, or that he was disabled by reason of any conviction. Their position is that they had knowledge that persons offered ballots who were not the registered electors they claimed to be, and were not registered at all; and their argument is that, notwithstanding those persons satisfied the statutory tests, such questions are always outstanding for the determination of the board, which only a majority can make.

I must say that to may mind this claim is as unreasonable as it is absolutely lacking in support in the fundamental or statutory law. It is repugnant to fundamental principles and to authority. I may fairly premise what brief discussion I may feel bound to enter upon in connection with the law regulating elections in this state with the remark that, if these appellants are right in their contention, then a way is made possible to perpetrate a great outrage upon the rights of electors. Under the present scheme of non-partisan boards of election inspectors, wherein the principal political parties in the state are intended to have equal representation, by a contumacious refusal of party adherents to sign an election return, based on the pretense that they were not satisfied in their minds that all of the ballots taken were cast by qualified and registered electors, the disfranchisement of all the electors in the election district could be effected. They could prevent the reception of a ballot from a proposed elector on their theory that a ballot is not finally received until by action of the majority of the board; for they would only have to oppose to the proofs required by the election law, and made by the person, their mental convictions that, notwithstanding them, he was not the elector he swore he was. I do not and cannot think such a result was ever intended, or can be fairly reached upon a consideration of the law. It is inconceivable that any such power should be lodged in election inspectors, or that they should be clothed with a discretion to reject a ballot offered by a proposed elector, whose qualifications, in case of challenge, are proved by the statutory methods.

The constitution of the state provides that the citizen fulfilling the stated conditions of age, citizenship, and residence shall be entitled to vote at the election; and it is thereby left to the legislature to enact laws excluding persons from the right of suffrage who have been convicted of bribery or infamous crime, and for ascertaining by proper proofs the electors who shall be entitled to exercise that right. The legislature accordingly has enacted laws regulating the holding of elections, and therein has provided, as a prerequisite to the right of the elector to vote, that he should be registered before the day for holding the election. Registration is the method of proof prescribed for ascertaining the electors who are qualified to cast votes, and the...