People ex rel. Gregory v. Love , 63 Barb. 535 ( 1872 )

By the Court, Talcott, J.

This is an action substituted by the Code in the place of the writ of quo warranto, and was instituted to try the respective titles of the relator and the defendant to the office of supervisor of the county of Orleans, for the town of Barre.

The defendant occupies the office, to which the relator claims that he, the relator, .was duly elected, at the annual town meeting of the town in April last. Issue was joined between the parties, and the action went to trial at the Orleans circuit, where the court ordered the complaint to be dismissed.

The facts upon which the question arises are substantially as follows : At the town election referred to, there were two tickets for town officers put in nomination by the voters of the town; one denominated the Republican, the other, the People’s ticket. The relator was the candidate for supervisor on the People’s ticket; the defendant vvas the candidate for the same office on the Republican ticket. All the ballots that were voted were printed. The Republican ticket commenced, and was in form, as follows:

“For Supervisor,

■ Ozro Love.

For Town Clerk,

John A. Raymond.

For Justice of the Peace, (Full Term,)

LeRoy R. Sanford.

For Justice of the Peace, (Vacancy,)

Henry M. Gibson.”

And so on, proceeding and stating in the same manner, and in addition" to the portion quoted above, the title of. various'other offices, viz., collector, commissioner of highways, overseer of the poor, assessor, constables, game constable, and inspectors of election for the three districts of the town. Under each of the titles was printed- a single name, except in the cases of the constables and the inspectors of election, and under each of those the number of names requisite to fill the offices specified were printed.

The “People’s ticket” was in the same form, with a designation, however, of different names for the respective offices.

Upon the canvass of the votes, twenty-six ballots were found consisting of the regular “Republican ticket’’with what is known as a “ paster.” These “ pasters” are narrow slips of paper with a name printed thereon, the back of the slip of paper being covered with mucilage for the purpose of conveniently applying them to a regular ballot, over a name upon it, and thus substituting the name on the printed slip for some name on the regular "ballot over which it is pasted. Each of the twenty-six votes above mentioned contained one of these slips having the name of Arnold Gregory, alone, printed upon it, and pasted over the name of Ozro Love. In other respects they were the' regular ballot known as the “ Republican ticket.” The “pasters” were pasted under the head of the words “ For Supervisor” at the head of the ticket, so as to cover the name of Ozro Love, and some of them wholly covered, and others partly covered the words “ For Town Clerk,” which was printed on the ballot below the name of Ozro Love, and above the name of John A. Raymond; so that in the cases where the whole of the -words “For Town Clerk” were covered by the “paster,” the vote with the “paster” purported to be as follows :

“For Supervisor,

Ozro Love.

John A. Raymond.”

By holding the ballot up to the light the words “For Town Clerk” could be read through the paster, in the space between the names of Ozro Love and John A. Ray-, mond. .On one of the ballots which contained these “ pasters,” the paster nearly covered up the words “ For Supervisor.”

The board of town canvassers declined to allow either Love or Gregory any of the twenty-six ballots on which the name of “ Arnold Gregory” was so pasted, and which covered the whole or any part of the words “ For Town Clerk,” upon the ground, as is conceded, that they designated the names of two persons, namely, Arnold Gregory and John A. Raymond for the office of Supervisor. This decision was’ sustained by the court, on the trial, as to all ballots where the paster covered the whole of the words “ For Town Clerk.” If these votes counted for the relator, he was elected to the office in question.

We think the judge at the circuit committed an error in holding as a matter of law, that the- ballots rejected by him for the cause stated, could not be allowed to the relator. Since the decision of The People v. Saxton, (22 Wend. 309,) and The People v. Cook, (8 N. Y. 67,) it has been considered settled, that on the trial of a quo warranto, where the question as to who was elected to a particular office, and what was the intention of certain ballots, is investigated before a jury, the court and jury are not confined within the narrow limits which control the boards of canvassers, who have no power to take evidence aliunde the ballot itself, for the purpose of elucidating any apparent ambiguity on its face, or any apparent incongruity between it and the surrounding circumstances. It was expressly held, in The People v. Saxton, (supra,) that the decision of the inspectors of election rejecting a ballot as designating the names of two persons for a single office is not conclusive, but upon quo warranto the question as to the voter’s intention is open to inquiry by the jury. And in that case it was held, where a name was written upon a printed ballot in connection with the title of an office, that the written name was to be counted for the party whose name was written, although a printed name for the same office, on the same ballot, was not erased. And this was held as a matter of law, upon the ground that where an instrument contains both writing and printing, and the two appear to.be inconsistent, the written words afford the best evidence of the intention, and accordingly that in that case the writing of the name afforded conclusive evidence of the intention of the voter to cast the ballot for the name that was written, and that the omission to erase the printed name was accidental. The same principle, we think, applies to this case. The acts of the voter are to receive a reasonable construction, in view of the surrounding circumstances.

[Fourth Department, General Term, at Rochester, September 10, 1872.

The placing of a paster containing one name, over another name, indicates an intention to substitute one name for another. If it be placed over another name which is under the title of an office, it indicates an intention to substitute for that office the name upon the “paster.” If it be done in such a manner as to afford any ground for doubt, whether the voter intended to designate two persons for the same office, we think that doubt may be safely left to be solved by a jury, in view of all the facts, the appearance of the ballot and the surrounding circumstances.

In this case, we are of th'e opinion that the facts should have been submitted to the jury, for them to determine whether the pasted ballots in question designated two names for the same office, or were only intended to substitute the name óf the relator for that of the defendant for the office of supervisor. '

A new trial must be ordered, with costs to abide the event.

Johnson, Barker and Talcott, Justices.] at a General Term in the Fourth Department, held January 7, 1873. Mullin, Talcott and E. Darwin Smith, Justices.]