People ex rel. Nichols v. Board of Canvassers of Onondaga County | Cases | Westlaw

The supreme court has awarded a peremptory writ of mandamus, directed to the board of supervisors of Onondaga county as a board of county canvassers, commanding them **330 to reject and exclude from their statement and computation of the votes cast for Rufus T. Peck, in that county, for the office of senator, for the twenty-fifth senatorial district, composed of the counties of Onondaga and Cortland, at the last general election held on the 3d of November last, certain ballots cast in the nine election districts hereafter mentioned. This appeal is brought for the purpose of a review in this court of the order granting the writ. It was made upon the application of the relator on a state of facts as to which there is no dispute, and the question is one of law regarding the power of the court. It appears from the record that certain ballots were cast at the election for Rufus T. Peck for the office of senator, in the first election district of the town of Camillus, upon which was the following indorsement, ‘Official ballot for second district poll, town of Camillus. *400 November 3, 1891;’ followed by a fac simile of the signature of the county clerk of Onondaga county. In the second election district of that town ballots were cast for him, indorsed in like manner, with the designation or number of the first district. In the first district of the town of Clay, ballots were cast for him indorsed for the second district, and in the second district indorsed for the first. In the first election district of the town of Tully ballots were cast for him indorsed for the second district, and in the second district indorsed for the first. In the first election district of the town of Elbridge ballots were cast for him bearing the indorsement for the third district. In the second election district of that town ballots were cast for him indorsed for the first district, and in the third election district indorsed for the first. In the first and second districts of Camillus and the first and second districts of Clay the same facts existed in regard to the indorsement of the ballots for member of assembly for the first assembly district of Onondaga county. The ballots were prepared and printed by the county clerk, whose duty it was, under the statute, to deliver to the town-clerk of each town the ballots for the several election districts in such town; but how they became transposed, in the manner above described, does not appear. Four different official ballots, containing the names of the candidates of the four different parties that had made nominations and filed certificates thereof, in compliance with the law, were delivered to the inspectors of election in all these districts, and were in use at the several polling places on the day of the election. What was known as the ‘Republican Official Ballot,’ containing the names of the candidates of that party for state, county, and legislative offices, was the only ballot used and voted that did not contain in the indorsement the proper number and designation of the polling place or election district where it was voted.

On the hearing of the relator's application at special term, Rufus T. Peck, upon his own application, was permitted to intervene, and was made a party to the record, on the ground *401 that he had an interest in the subject-matter of the proceeding, and a right to intervene as a party defendant, and that a complete determination of the questions involved could not be had without his presence on the record. In order to facilitate a speedy hearing, the attorneys of record entered into a stipulation providing that all questions involved in the case be presented to and determined by the court upon the facts as they appear in the papers. In this condition of the record we are not embarrassed by any technical questions, such as the power of the county canvassers under the statute to exercise any functions of a judicial nature; but we are to meet the broader and more important question whether, upon the facts, the ballots in question can lawfully be counted for the candidate for whom they were cast. The ground upon which the canvassers were directed to exclude the ballots from their estimate and statement of the vote for senator was that they were not indorsed with the number of the election district in which they were used by the electors, as required by the statute, but were, in fact, indorsed with the number of another district. Under the laws in force governing the conduct of elections and the manner of voting, prior to the recent legislation commonly known as the ‘Ballot Reform Act,’ it is quite clear that ballots could be counted for the candidate for whom they were cast, though they did not in all respects correspond with the directions of the statute, and after deposited in the box could not, probably, be rejected, in any case, by the canvassers or the courts, if the intention of the voter was sufficiently expressed. The right to vote, secured to the citizen by the constitution, must be exercised in the manner and subject to the regulations lawfully prescribed by the legislature in respect to the time when and the method by which his will is expressed; and, in order to make his will and intention effectual at the election, he must comply with, at least, all the substantial requirements of law.

The question now before us is whether those citizens of Onondaga county who used the ballots which the canvassers in this case have been ordered by the supreme court to reject, *402 have so far neglected to observe the forms and regulations prescribed by law for voting at elections that their votes so cast must be held to be void. In the absence of some clear and positive prohibition in the statute against counting such ballots, the tendency of courts would, undoubtedly, be in the direction of effectuating, as far as possible, the intent of the voter. But it is the duty of this court, above all, to declare the law as it finds it; and if a fair consideration of the language used in the statute, and its general policy, should result in the exclusion of the ballots in question, it may be said that it was not the first time that a citizen attempted to exercise a right, and, either through neglect, mistake, or ignorance, failed in the accomplishment of his object. We are confronted with certain clear and positive statutory provisions which must now be referred to in order to ascertain whether the court, in ordering the mandamus to issue, **331 simply obeyed the mandate of the legislature or misapprehended its meaning. What is known as the ‘Ballot Reform Act’ is chapter 262 of the Laws of 1890, as amended by chapter 296 of the Laws of 1891. It is matter of recent history that this law was for years the subject of agitation and earnest debate, both in the legislature and before the people, through the public press and otherwise. No statute has been passed in recent years, at least, that received such full consideration, or after so much deliberation and careful serutiny on the part of the executive and the legislature. It was so apparent to every one that it worked such radical changes in the conduct of elections and in the manner of voting, from the regulations previously existing, that its final passage was secured only after the most exhaustive and careful scrutiny on the part of the law-makers and the public. Great care was used in the selection of words and language appropriate to express clearly what was intended; and every detail, both of composition and arrangement, was the subject of study and deliberation. In dealing with a statute, originating as this did, we may well assume that every word and phrase was weighed and scanned, and that courts can safely follow the plain language of its provisions as the expression of the legislative intent. The general *403 policy and scope of the act was well expressed in the title, ‘An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.’ We know that the principal mischief which the statute was intended to suppress was the bribery of voters at elections, which had become an intolerable evil; and this was to be accomplished by so framing the law as to enable, if not compel, the voter to exercise his privilege in absolute secrecy. The primary aim and object was to enable the voter to cast a ballot for the candidates of his choice without the possibility of revealing, by the act of voting, the identity or political complexion of the candidates voted for. When it was made impossible for the briber to know how his needy neighbor voted, the law-makers reasoned that bribery would cease. It is reasonable, therefore, to assume that any construction of this statute which would permit ballots to be cast and counted that contained any caption or word that would reveal the way the voter using them voted, should be avoided, as contrary to the true policy and intent of the law. The idea at the very foundation of the law was secrecy. To this end it was provided that ballots, uniform in size, in type, in color and quality of paper, and in the words and appearance of the indorsement, should be printed and distributed by the county clerk at the public expense. This is called in the law the ‘official ballot,’ and is the only instrument by means of which the elector can legally express his will at election, save in the exceptional cases provided for in section 21. These are cases where the official ballots have not been delivered at the time provided in the statute to the town or city clerk, or shall be destroyed or stolen, after such delivery, or a candidate for any office, whose name is printed on the official ballot, shall have died, shall be or become ineligible, or shall have withdrawn before election day. In such cases, unofficial ballots, to be prepared and furnished under the conditions and restrictions prescribed in the section, may be used by the voter. It is obvious that this section has no application to this case, as none of the events provided for therein have happened.

*404 So careful was the legislature in providing for secrecy in voting that it prohibited the voter from in any way marking his ballot, or showing it to any one, after it was prepared for voting, in such a way as to reveal its contents; and every one was prohibited from soliciting the voter to show the same, and no person but an inspector of election is permitted to receive a ballot prepared for voting from a voter. Section 35. It is, moreover, expressly provided that any election officer or watcher who shall reveal to another person the name of any candidate for whom a person has voted, or who shall communicate to another his opinion, belief, or impression as to how, or for whom, a voter has voted, or shall place a mark upon a ballot, or do any other act by which one ballot can be distinguished from another, shall be guilty of a misdemeanor punishable by imprisonment. Section 34. It is also provided that a ballot, deposited by a voter in the ballot-box, upon which, or upon any paster affixed thereto, a writing or mark of any kind has been placed by the voter, or by any other person to his knowledge, with the intent that such ballot shall afterwards be identified as the one voted by him, shall be void and of no effect. Most of these stringent provisions would be little short of absurd if it can be supposed that ballots, bearing an indorsement which distinguishes them from all others in use at the polls, can be lawfully put into the ballot-box. The indorsement upon the official ballot was an essential part of the machinery of elections by means of which the secrecy of voting was to be secured and enforced. That was to be printed in large letters, and was to be uniform as to all the ballots at the same polling places. As it was the only part of the ballot to be exposed to the observation of the election officers or the bystanders, at the moment when the vote is offered, it was important to provide that it should contain nothing that could reveal to any one the elector's choice. The indorsement was therefore to be precisely the same on all the ballots used at the same polling place or election district. A different, distinct, or peculiar indorsement upon the ballots, or any of them, used by any party or candidate, or set of candidates, would, of course, *405 remove all secrecy from the act of voting, as to the electors using a ballot with such an indorsement, and thus the fundamental purpose of the law would be defeated. This was so apparent, and was regarded as of so much importance, in the successful operation of the law, that the legislature carefully prescribed the form of the indorsement to be used upon all ballots at the same polling **332 place in the following language: ‘On the back of each ballot shall be printed in type known as ‘great primer Roman condensed capitals' the indorsement ‘Official Ballot for _____;’ and after the word ‘for’ shall follow the designation of the polling place for which the ballot was prepared, the date of the election, and a fac simile of the signature of the county clerk. The ballot shall contain no caption or other indorsement except as in this section provided.'

This provision plainly requires that upon all the official ballots used at any polling place there shall be printed, in the manner therein described, the same indorsement, and consequently that the designation or number of the election district in the indorsement shall be precisely the same, and, in all cases, that designation or number shall be that of the polling place or election district where the vote is offered, and no other. The ballots in question were cast in utter disregard of this important provision of the statute, as the indorsement did not in any case contain the designation or number of the election district where they were voted, but did contain the designation or number of another district where they were not used. The indorsement upon them differed from the regular indorsement on all the other ballots used or voted at the same polling place, and, as they were used or voted by but one of the parties that had made nominations, or, in other words, in behalf of but one candidate or set of candidates, the voters who used them necessarily disclosed to the election officers, watchers, and such of the by-standers as could or desired to observe, the candidates voted for, and thus not only the letter of the statute was disregarded, but its very purpose and intent were defeated. It cannot be denied that any one who saw the indorsement *406 on the ballots before they were put into the box was informed at the same time as to their contents, by means of the word in the indorsement designating the wrong polling place or district. While there is nothing in the record to show that the ballots were intentionally, or by any preconcerted arrangement, diverted from the election district for which they were prepared, and sent to districts for which they were not prepared nor intended, it is scarcely possible that the means of distinguishing them from all the other ballots used were not known to the election officers who received, and many of the voters who used, them. But, however that may be, the important fact remains that every elector how voted one of the ballots thereby revealed his choice and the contents as fully and completely as if the party designation, or the political complexion of the candidates whose names appeared upon its face, had been made a part of the indorsement, or was stamped in some other place on the outside of the ballot. If this can be held to be a legal exercise of the right of suffrage, and that the ballots thus cast are on the same footing as all the other ballots, then it is manifest that the legislature has utterly failed to secure secrecy in voting. The legal consequences that follow this disregard of both the letter and spirit of the statute have been, as it seems to us, very clearly pointed out by the legislature. The twenty-ninth section, as amended, provides that ‘no inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day, any ballot which is not properly indorsed and numbered, except in the cases provided for in section twenty-one of this act; nor shall any inspector of election deposit in a ballot-box, or permit any other person to deposit therein, on election day, any ballot that is torn, or has any other distinguishing mark on the outside thereof.’

It will scarcely be claimed that these ballots were ‘properly indorsed,’ or that they came within the provisions of section 21, and, consequently, the election officers were commanded by the statute not to deposit them in the ballot-box when offered by the voter. Moreover, they had what the statute calls a ‘distinguishing mark on the *407 outside;’ that is to say, they had, when placed among the other ballots at the polling places where they were used, a special and peculiar indorsement, by means of which they could readily be distinguished from all others, and thus the improper indorsement constituted, at the same time, a distinguishing mark. It will be seen, upon a careful reading of the statute, that the legislature has carefully provided for the exclusion of marked ballots from the ballot-box, and from the final count and estimate of the actual legal vote, in two cases: First. Where the mark or writing is affixed or placed upon the face or inside of the ballot, or upon any paster attached, by the voter or any other person, for the purpose and with the intent of subsequently identifying the ballot, and tracing it to the voter. In this case the ballot is not to be rejected or excluded from the count and estimate until the intent is ascertained and determined. Secondly. Where there is a distinguishing mark on the outside, open and visible to all, which may not only be used to identify the voter who cast it, but also serves to inform others at the time of voting of the contents of the ballot, and thus defeat the object of the law in securing secrecy. In this case the election officers are forbidden to put the ballot into the box, no matter with what intent the distinguishing mark was placed upon it. To allow it to go into the box might defeat the policy of the law, though the distinguishing mark was the result of accident or mistake. The plain words of the statute, therefore, made it the duty of the election officers, when offered one of these ballots, prepared for and indorsed with the designation or number of another district, to refuse it. This would not defeat the right of the elector to vote, because he could still prepare and tender a ballot with the proper indorsement.

But the inspectors did receive the ballots, and put them into the ballot-box; and the remaining question is whether they could lawfully count ballots found in the box which it was their duty to refuse when offered by the elector. Upon **333 this point the statute seems to be clear and imperative. The thirty-first section provides for the canvass of the votes by the inspectors, in these *408 terms: ‘The votes for the several candidates shall be canvassed in the order in which they appear upon the several bailots. No ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act.’ We are unable to construe this language, when applied to the facts of this case, in any other way than as the clear and positive mandate of the legislature to the canvassers to reject and treat as void all ballots found in the box prepared for and bearing the designation and number of another and a different polling place or election district than the one where the ballot was cast. The legislature has forbidden the elector to cast such a ballot. It has prohibited the inspectors from placing it in the box, and the canvassers from counting it. The case could be no stronger had it in terms declared such a ballot absolutely void for all purposes. But it is said that this result will disfranchise the electors who cast these ballots in good faith, believing that they were the proper official ballots. The answer is that when an elector attempts to express his will at an election by the use, through either design or accident, of ballots which the law declares shall not be counted, the courts have no power to help him. Had these ballots been misplaced by design or some preconcerted arrangement between the county clerk and the candidates whose names appear thereon, or some of them, the voters using them might be as innocent then as they appear to be in the case at bar; but to hold, under such circumstances, that the votes must nevertheless be counted would be to suggest an easy method of defeating the fundamental purpose of the statute. The law contemplates that the elector will not blindly rely upon any one, not even the election officers, in the preparation of the ballot. If he is handed an official ballot with a distinguishing mark upon it, or an improper indorsement, he is not obliged to vote it, but may procure a proper ballot. In this case it cannot be said that the electors were obliged to use these ballots or omit to vote at all. It was their duty to see to it that so important a part of the ballot as the indorsement was in conformity with *409 the statute. They must have known, or, at least, could easily have ascertained, that the ballot was prepared for and indorsed with the number of another polling place; and then they could have used paster ballots, containing the names of the candidates of their choice, upon some one of the other three official ballots in the hands of the inspectors, and which all concede contained the proper indorsement, and the ballots in question could then be returned to the inspectors. That the use of these ballots was, at best, a wholly unnecessary and thoughtless act on the part of the voters who cast them is entirely evident. But, even if it could be said that those electors had no knowledge or means of knowledge in regard to the improper indorsement, and that they could not without some inconvenience provide themselves with ballots such as the law required, we would still be obliged to hold that it would be far better that their votes should be deemed ineffectual than that the fundamental purpose of an important public statute should be subverted, and, in the struggle to save these votes by judicial construction, the door should be thrown open for evasions of the statute which might revive evils far more dangerous to the public welfare than can possibly, under any circumstances, follow the exclusion of a few hundred votes in a single county, cast by voters who, at least, as all must admit, neglected to observe important requirements of the law. It may be freely admitted that no statute regulating the conduct of elections should be so construed as to place arbitrary or unreasonable obstructions in the way of the citizen in the exercise of his right to vote, and, further, that any law fairly open to such an objection would be in conflict with the constitution. But when we keep in mind the fact that the statute now under consideration was intended to prevent corruption, and the consequent debasement of the franchise, it was not unreasonable to provide that if an elector attempts to exercise his right in such a way as to reveal the contents of his ballot, or to make subsequent identification possible, the inspectors shall not receive it, and, if received, it shall not be counted.

There is a view of the case which was *410 not suggested in the argument, and does not appear in the briefs of counsel, but originated with members of the court, that we have carefully considered. It is suggested that when section 29 speaks of certain ballots that the inspectors are not to receive, and section 31 of certain ballots that the canvassers are not to count, reference is made only to unofficial ballots, other than those provided for in section 21. This is not the natural and obvious meaning of the language used, and such a conclusion cannot be reached without supplying words that the legislature has not used. The ballot which the inspector must refuse, under section 29, is there described as one ‘which is not properly indorsed and numbered;’ and the ballot which the canvassers shall not count, under section 31, is there described as one ‘that has not the printed official indorsement.’ So far as these two sections require inspectors to refuse votes offered and canvassers to exclude votes found in the box, not regular by reason of neglect to comply with the statute in respect to the indorsement, they obviously refer to the same or similar defects, and apply to the ballots in question. The legislature could not and did not anticipate that any other unofficial ballots than those provided for by section 21 would be offered or could get into the box, and was not providing against such an impossible, or very remote, contingency. The prohibitions of these two sections were clearly aimed at evasions or abuses liable to arise in the use of the official ballots, and such as did actually arise at the election in question. As no question **334 of this kind could possibly arise under the laws relating to elections in force prior to 1890, there are no adjudged cases by the courts to be found in this state that furnish any aid in the solution of the question before us; but enactments similar in their provisions, and identical in policy, have been before the courts of many of our sister states for construction. One of the earliest cases on the subject was that of Com. v. Woelper, 3 Serg. & R. 29. In that case the election was one for officers in a religious corporation, but the principle decided applies to public elections. What *411 was known in that case as the ‘German Party’ succeeded at the election, having cast 531 ballots. The tickets voted by them were marked with the figure of an eagle. The elections were regulated by a corporate by-law, which provided that ‘if, besides the names, there are other things on the ticket, or if two or more votes are found together, such tickets shall not be read off or votes counted.’ The defeated party claimed that the tickets marked with the eagle ought not to have been counted, though the voters who cast them were members of the congregation entitled in all other respects to vote, and to have their votes counted, at elections. On a trial at nisi prius the jury were so instructed, and the election was held invalid. On appeal, this instruction was held to be correct. The court (TILGHMAN, C. J.) said: ‘The fifth and last point turns on the construction of the by-law before mentioned. The tickets in favor of those persons who succeeded in the election had on them the engraving of an eagle. The judge who tried the case charged the jury that those tickets ought not to have been counted. The case is certainly within the words of the law. The tickets had something more than the names on them. But is it within the meaning of the law? I think it is. This engraving might have several ill effects. In the first place, it might be perceived by the inspector, even when the ticket was folded. This knowledge might possibly influence him in receiving or rejecting the vote. But, in the next place, it deprived those persons who did not vote the German tickets of that secrecy which the election by ballot was intended to secure for them. A man who gave in a ticket without an eagle was set down as an anti-German, and exposed to the animosity of that party.’

In West v. Ross, 53 Mo. 350, the statute provided that ‘no ballot not numbered shall be counted,’ and the question arose as to whether ballots cast for a successful candidate for county clerk, not numbered, should be excluded from the count. It was conceded that no fraud was intended by the inspectors in failing to number the ballots, but it was occasioned by an inadvertence on their part. It further appeared *412 that the number of ballots counted corresponded with the number of voters appearing on the poll-list. The court, however, held that these votes were void. In the opinion the court said: ‘This case may be a hard case, and doubtless is; but the legislative enactment is clear, and, although it may deprive a portion of the citizens of the county of their right to be heard in the election of a clerk at one election, it is better that they should suffer this temporary privation than that the courts should habituate themselves to disregard or ignore the plain law of the land in order to provide for hard cases.’ ‘In the present case the legislature has provided and required that the ballots should be numbered, and then provides, in express terms, that no ballot not numbered shall be counted. Can we say that such ballots shall be counted without an attempt at judicial legislation? I think not; and it would be a misapplication of terms to say that such a statute is only directory.’

In Oglesby v. Sigman, 58 Miss. 502, an application was made for a mandamus to compel canvassers to reassemble and recanvass votes cast for member of congress, and to reject ballots claimed to be illegal, by reason of the fact that they contained certain marks and devices prohibited by statute. The statute provided that the ticket should not contain any ‘device or mark by which one ticket may be known or distinguished from another;’ and that a ‘ticket different from that herein prescribed shall not be received or counted.’ The court held that ballots marked in violation of the statute were void, and in the opinion it is said: ‘We think the effect of section 137 of the Code of 1880 is to condemn as illegal, and not to be received or counted, every ballot which has on its back or face any device or mark, other than the names of persons, by which one ballot may be distinguished from another. This statute does not condemn devices or marks on the outside of a ballot merely, but clearly embraces the face of the ballot as well. That is apparent from the exception contained in it, and a device or mark on the face of the ballot is as *413 much within what we suppose to have been the object of this provision as one on the outside or back of it. It is apparent from the provision that its object is not only to preserve secrecy as to what ballot an elector casts,—which is the leading idea of statutes in some other states, which prohibit any device or mark on a ballot folded, which betrays the secret of the voter,—but also to secure absolute uniformity as to the appearance of ballots, in order that intelligence may guide the electors in their selection, and not a mere device or mark by which ignorance may be captivated. The legislature was trying to prevent multitudes from ‘being voted,’ and being guided, by a mere device or mark by which they should distinguish the ballots they were to use in the process, without a knowledge of the names of persons for whom their ballots were being cast. Elections are a contrivance of government, which prescribes who are electors and how they may express their will, and it is a legitimate exercise of power to prescribe the description of ballot which shall be used.' It has been held, upon similar grounds, that a ballot printed upon colored paper, in violation of a statute requiring them to be printed upon white paper, was void, (State v. McKinnon, 8 Or. 493;) and that a ballot was properly rejected which did not conform **335 in length and in other minor respects to a statute prescribing the form of ballots to be used, (Reynolds v. Snow, 67 Cal. 497, 8 Pac. Rep. 27.)

In Connecticut, under a recent statute in many respects similar to ours, the official ballot contains the name of the political party using it. At a municipal election 86 ballots were cast, containing the caption ‘Citizens' at their head; but were in all other respects the same as the Repbulican ballots, including the candidates' names. But, as there was no party in the city known as the ‘Citizens' Party,’ it was held that these ballots were void, and could not be counted. In that case the statute prescribed the form of the ballot, which is to contain, among other things, ‘the name of the political party issuing the same;’ and then provided that ‘all ballots cast in violation of the foregoing provisions, or which do not conform *414 to the foregoing requirements, shall be void, and not counted.’ The reasoning of the court by which that conclusion was reached is applicable here. Talcott v. Philbrick, 59 Conn. 472, 20 Atl Rep. 436. Other cases could be cited which hold the principle that ballots cast by electors, not conforming to the provisions of a statute intended for the purpose of securing secrecy, and which reveal the contents of the ballot, or render it capable of subsequent identification, are void by force of prohibitions in the statute against receiving and counting them, in substance, the same as is to be found in the statute under consideration. Fields v. Osborne, (Conn.) 21 Atl. Rep. 1070; In re Vote Marks, (R. I.) Id. 962; Ledbetter v. Hall, 62 Mo. 422; Perkins v. Carraway, 59 Miss. 222; Steele v. Calhoun, 61 Miss. 556. We think that these ballots cannot be counted without weakening or breaking down provisions of the statute which, in view of its general purpose, must be regarded as vital. For these reasons the orders appealed from should be affirmed.

While I concur in the opinion delivered by my associate Judge O'BRIEN, I have thought it proper to state in my own language the line of thought which has led me to the conclusions reached by a majority of the court. I regard this case as one of primary importance, not so much, perhaps, from the effect that its decision may have upon the interest of the individuals engaged in the controversy, or the temporary prospects of political parties, but from the permanent influence which it will exercise upon the cause of ballot reform, which has in recent years shown itself so strong in the regard of the people, and vindicated that favor by the success which has attended the enforcement of the reform legislation of 1890 and 1891. It cannot be disputed but that, in the initiation of the movement for ballot reform, there was much difference of opinion in regard to the propriety of the laws proposed, and much fear expressed in respect to their operation, and I must confess that I was among those who regarded the result as doubtful *415 and uncertain, and feared that their enforcement would be likely to impose a serious and dangerous restraint upon the exercise of the right of elective franchise by the citizen. We have, however, now had two years of experience under these statutes, and it seems to me that many of those who originally opposed the law have become reconciled to its operations, and a great change has come over the popular mind in regard to its beneficial effects. I think that it will now be generally conceded that the influence of these laws, if fully and impartially enforced, will practically prevent bribery at elections, and restrain the power of extraneous influence over the mind and conduct of the voter in the exercise of his political rights, within healthy limits. Any decision, therefore, of this court which would tend to materially hamper the beneficial operation of these laws, and relegate the question of ballot reform to its original position, will, I think, prove a serious misfortune to the country, and the source of great regret to every thoughtful and conscientious citizen. I think that but few will dissent from these views, or from the further proposition that any determination of the question before us which will prove an embarrassment to the cause of ballot reform should be most earnestly deprecated and avoided, if the language of the statutes will permit of another result.

The issue involved in the present controversy, as it was presented on the argument, is the claim made on one side that these proceedings were on the part of the relator to change the political complexion of the senate of the state by forcing a candidate into an office to which he was not legally elected, and the assertion on the other that the candidate opposed to the relator, although having an apparent majority of the votes cast, secured that majority only by counting in his favor illegal ballots procured through intimidation, and the exercise of unlawful influence over the minds and conduct of the voters at the polls. The question, therefore, which lies at the foundation of the controversy, is, who had a plurality of the legal ballots cast at the election in question? And as that question *416 shall be determined by this court will depend the ultimate decision of this appeal.

The facts, having been agreed upon by the parties, are simple and undisputed. The twenty-fifth senatorial district consists of the counties of Onondaga and Cortland, and contains a voting population of about 40,000. The canvass of votes showed that Peck, the Republican candidate for senator, received in the county of Cortland a plurality of 770 over Nichols, his Democratic competitor; and in Onondaga county Nichols received a plurality of 388 over Peck,—thus showing an apparent plurality for Peck of 382 votes; the total vote for Nichols in Onondaga county being 15,759, and for Peck 15,381. Among the ballots thus counted for Peck were 1,252, which were, when voted, indorsed **336 with a number which did not correspond with the number of the district in which they were cast, or with the number which was indorsed upon all other ballots cast in the same district at that election. These obviously illegal indorsements were found only upon Republican ballots, and were made upon all of the ballots cast for Peck in the several districts named. These were the first and second of the towns of Clay, Camilius, and Tully, respectively, and the first, second, and third of the town of Elbridge; and being, as I infer, all of the election districts in the several towns named. These facts appeared upon the face of the returns made to the county canvassers, and these votes were allowed to Peck by that board under the only canvass permitted to be made by it pursuant to the express requirement of an order of a special term of the supreme court. No explanation is furnished by the papers as to how the transposition of ballots occurred, nor are any facts stated from which it can be conclusively inferred that it was innocently produced. On the contrary, in my judgment, there is the strongest evidence in the case tending to show that they were *417 designedly transposed. It is plainly inferable from the manner in which votes were required by statute to be prepared, printed, and distributed by the county clerks to the several town-clerks that the transpositions occurred in the office of the county clerk. Thus, he is required to prepare all ballots intended to be used in his county, to cause them to be printed, and, when printed, to be placed in separate packages, properly marked for the respective towns and districts in which they are intended to be used, and to transmit them to the respective town-clerks as early as the Saturday preceding the day of election, for distribution to the inspectors. The distribution by the town-clerk is required to be made of unopened packages, as they are directed, among the inspectors of the various districts in the town, before the polls open on the morning of the election. It is quite obvious, therefore, that the respective packages were put up in the county clerk's office, and addressed not only to the respective districts for which they were intended by the county clerk, but all those intended for a particular town were embraced in a single package addressed to the town-clerk. These packages were all sent out duly addressed, and reached their respective intended destinations. In the several election districts referred to, however, the inspectors of election, upon opening the packages addressed to them on the morning of election, discovered that the Republican ballots inclosed in the packages were all indorsed with an erroneous district number, while all other tickets contained in the same packages were properly indorsed. No effort appears to have been made by the inspectors to correct this palpable violation of law, although within the limits of a small town it could apparently have been accomplished in a comparatively short period of time, by an exchange with the districts whose ballots had also been erroneously distributed, but the election was deliberately proceeded with, and the ballots cast in all of the towns and districts named were taken under circumstances which obviously exposed the political *418 character of every Republican vote as notoriously as though it had been openly proclaimed by a herald at the polls.

It is strenuously urged by the appellants' counsel that these transpositions were inadvertently made. This contention is obviously immaterial, but I think there is little in the circumstances to render such a claim either plausible or probable. In preparing the packages the persons superintending the operations must have selected with care and accuracy the ballots prepared for the candidates of the Democratic, Prohibition, and Socialistic parties, and correctly assigned them to the proper district. They must also then have selected the Republican ballots designed for the several towns having two districts, and put those prepared for the first district into the package sent to the second, and those designed for the second district into the package sent to the first district. This could only have occurred by rejecting the package properly marked, and selecting another package, obviously designed for another district. This was done in six districts, and involves the happening of twelve simultaneous mistakes of a similar character, to produce the alleged inadvertent transposition of votes. The work of transposing the votes of the town of Elbridge was a more complicated transaction, and required some calculation to make it successful, as there were several districts to be affected. This, however, was done by sending to the first district those ballots designed for the third, to the second those designed for the first, and to the third those prepared for the second; and thus each district secured its full complement of votes, but they were each marked so as to advertise, when cast, the contents of the ballot. It is quite significant, also, that this is the only county of the state in which such mistakes occurred, and that it occurred only with the ballots of a single one of the four parties whose ballots were handled by the officers charged with the duty of making the distribution of ballots. No explanation is made by the county clerk of the manner in which this result was effected, except by the affidavit of a subordinate in his office, who testifies substantially that he superintended the distribution *419 of the ballots in the county clerk's office, and that, if any mistakes were made, they were inadvertently committed, and not with any intent to evade the provisions of the ballot reform law. This is the statement of a mere opinion, and can have no legal effect upon the character of the transaction, except to show by the testimony of an implicated party that he did not intend to commit a criminal offense. Such is the only explanation offered by the officers implicated to account for the apparent perpetration of a great crime, through which one political party was in nine election districts of the county enabled to disregard the wholesome restraints of the ballot reform law, and reap the advantage to be derived therefrom.

That a crime was committed by some **337 one having in charge the distribution of the ballots for the several towns referred to cannot be the subject of reasonable doubt. Among those officers the duty of the county clerk is the most important. He is charged with the whole duty of preparing the ballots for printing, overseeing their publication, assigning the towns and districts to which they are to be sent, and effecting their proper distribution. The importance of a strict and conscientious performance of his duties cannot be overestimated, as any mistake or carelessness on his part is sure to involve the most serious consequences to the cause of good government and the administration of its laws. It is therefore that all of the duties to be performed by him are most carefully and minutely defined by the law, and it is especially provided by the act that ‘every public officer upon whom any duty is imposed by this act, who violates his said duty, or who neglects or omits to perform the same, shall be deemed guilty of a misdemeanor,’ and subject to fine or imprisonment, (sction 34, c. 262, Laws 1890, as amended;) and any person who shall forge or falsely make the official indorsement of any ballot shall be deemed guilty of a felony, (section 32, c. 262, Laws 1890.) That these sections have been glaringly violated is made apparent by the conceded facts, and, while the actual offender *420 may not now be certainly pointed out, it will be desired by every candid and law-abiding citizen that the incoming legislature may by a thorough investigation ascertain the facts and detect and expose the guilty party. It is claimed by the appellants that the political party whose ballots were thus transposed could have had no improper motive in effecting such transposition. It would seem to be a sufficient answer to this suggestion to say that the act does not regard the motives of those who violate the law by improperly indorsing ballots, but condemns the act and prescribes the punishment for its commission, whatever may have been the cause or motive for its perpetration. It imperatively requires that every ballot cast (with an unimportant exception) shall be of the same shape, size, and color, and have the same indorsement. The purpose of the act seems to require that these provisions should be held to be mandatory, and that a disregard of them upon any pretense whatever should constitute a violation of the law, and cause a forfeiture of any benefits sought to be derived from such illegal ballots. The vigorous enforcement of these penalties constitutes the principal mode by which obedience to the law was expected to be secured. But let us look further at the motives which may reasonably be supposed to have actuated the minds of the parties charged with the duty of handling these ballots by their unlawful manipulation. It appears from the votes cast that Mr. Nichols received a large Republican vote in Onondaga county. The court can take judicial notice of the facts appearing in the public records of the state. They show that Onondaga is a Republican county, and for a long series of years has given a plurality of votes for that party, varying from two to four thousand votes at each election. At this election, however, it gave a considerable plurality for the Democratic candidate. It is therefore obvious that for some weeks preceding the election there must have been evidence of a popular current which threatened a defection from that party, and consequent accessions of strength to the ranks of its opponent. *421 What more efficient agency could have been adopted to arrest such a movement than the publication of the fact that every person who deserted from his party in such an emergency would be watched and exposed to the various consequences which inevitably follow those who throw off their fealty to party obligations, and incur the hostility of their former political associates. Not only were the voters exposed to these influences, but the fact that their ballots were improperly indorsed exposed them to the approaches of vicious and corrupt partisans, who might, either by bribery or intimidation, seek to influence their conduct. It is evident that, if such practices are permitted under the law, the purpose of the act to shield the voter from obnoxious supervision and observation while exercising the right of elective franchise is practically defeated.

We are now brought to the crucial question presented by the situation, which is as to the disposition to be made by the canvassers, under the law, of the votes thus illegally cast. The language of the act on this subject is plain and unambiguous, and furnishes a full and conclusive answer to the inquiry, which no ingenuity can obscure or evade. The statute says that ‘no inspector of election shall deposit in a ballot-box, or permit any other person to deposit in a ballot-box, on election day, any ballot which is not properly indorsed and numbered, except in the cases provided for in section twenty-one of this act; nor shall any inspector of election deposit in a ballot-box, or permit any other person to deposit therein, on election day, any ballot that is torn, or has any other distinguishing mark on the outside thereof.’ Section 29, c. 262, Laws 1890, as amended by Laws 1891. And further, that ‘no ballot that has not the printed official indorsement shall be counted, except such as are voted in accordance with section twenty-one of this act.’ Section 31 of the amended act. No claim can be seriously made that the ballots in question were cast in accordance with section 21 of the act, and they therefore necessarily fall under the absolute and unqualified prohibition which is directed against the *422 receiving or counting of such ballots, imposed by the quoted provisions. The act provides that no ballots not properly indorsed shall be received, or, if received, shall be counted. This result must necessarily follow the commission of the prohibited act, whatever may have been the ignorance or intention of the voter or any other person connected with the act of voting, for the canvassing officers are imperatively directed not to receive or count the improperly indorsed ballot. No investigation is required or permitted by the inspector into the motives of the voter, or **338 those who prepared the ballots for him; but without inquiry, upon the mere inspection of the ballot, the inspectors are required to take affirmative action rejecting it, and if for any reason that duty has been omitted at the polls, they are required to refrain thereafter from canvassing or counting such ballots. It cannot, of course, be successfully contended that under the language of this statute any board of canvassers before whom the facts lawfully come, and vested with the duty of canvassing votes, had any authority in law to count these illegal ballots, and it was therefore practically decided in our deliberations by an unanimous court that, unless some change was made in the language of the statute, these votes must be rejected. Some of the members of the court are of the opinion that the statute may properly be read as though the word ‘unofficial’ had been inserted in the quoted sentences before the word ‘ballot’ wherever it occurs, so that the words of exclusion shall apply to unofficial ballots alone. This interpolation of a word is claimed to be justified by the alleged injustice which would otherwise be inflicted in this case by the disfranchisement of upwards of 1,200 voters. The conclusive answer to this claim is the fact that such interpolation defeats the plainly implied intention of the law-makers, and destroys the sole beneficial purpose of the act. It is among the most familiar rules of construction that the office of interpretation is to carry out the intention of the lawmakers, *423 and facilitate the accomplishment of their object. Any change, therefore, in the language of a statute which contravenes principles is prohibited by the elementary rules of construction. What was the obvious purpose of this statute? It is expressed in language that permits of no doubt as to its meaning, and is revealed not only by its title, but breathes in every line and word of its 46 sections. The title declares it to be ‘An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of ballots at public expense.’ The body of the act shows by manifold provisions that this purpose is to be accomplished only by the inviolability with which the conscience and intention of the voter is guarded, while exercising the right of suffrage, from the observation and scrutiny of others. It cannot, therefore, be reasonably claimed that it was within the purpose of the law-makers to permit a voter, whether casting an official or an unofficial ballot, to reveal at the polls in any manner or on any pretense whatever the character of the ballot which he proposes to cast. Let us therefore consider the effect of the suggested construction of this statute. It plainly assumes to limit its application to unofficial ballots, and thereby to exempt from its operation all official ballots. Ballots, by the law, are designated as ‘official’ and ‘unofficial,’ and are expressly defined by various sections of the act. Those designated ‘unofficial’ are described by section 21 of the act, and are ballots authorized to be printed by a town or city clerk only when the ballots required to be furnished by the county clerk have not been delivered, or, after their delivery, have been lost or destroyed. In case such ballots are not furnished by the town or city clerk in time, or the supply of ballots becomes exhausted before the polls are closed, each elector may furnish his own ballot. These ballots, however, are required to be without indorsement. All other ballots are official. It is apparent, then, that the ballots in controversy were not in any sense unofficial ballots, and were not attempted *424 to be voted in accordance with the provisions of section 21. It is obvious that the use of unofficial ballots must be exceptional in any case, and was allowed only to guard against an improbable, yet possible, contingency, but was not intended by the law-makers to play an important or even usual part in the conduct of an election. In fact I think that it must be assumed that the occasion has never arisen in this state when the use of an unofficial ballot has been required. If it had, that fact would undoubtedly have become notorious. Is it reasonable, therefore, to suppose that the legislature intended its elaborate and carefully considered scheme of ballot reform to apply to a mere incident of an election, rarely, if ever, liable to occur, and to leave the great evil, which dominated the entire country, and infested every polling place throughout the state, to rage without regulation, restriction, or control? It would amount to saying that the leading and most effective provision of the statute, containing its only operative clauses, should be emasculated, and turned into a provision having no practical effect or operation whatever. A most unjust and mischievous construction would be thus given to the law, for it would apparently authorize the improper indorsement of official ballots, and, although so marked and distinguished as to reveal their contents, would nevertheless permit them to be counted. The law, so construed, leaves the candidate, confessedly elected by illegal ballots, to avail himself of their aid in entrenching his position, so that, if he can ever be dislodged therefrom, it can only be when the lawfully elected candidate is in the remote future enabled to prove the agency whereby the illegal transposition of ballots was accomplished, and the secret intent with which it was done. An act leading to such results might, we believe, be more appropriately termed a statute to encourage the violation of the right of elective franchise than one to protect and purify it.

A further answer to the construction contended for is found in the provision which prohibits any indorsement whatever *425 from being made upon unofficial ballots. Is it not, therefore, the height of absurdity to suppose that all of the numerous and carefully worded provisions in respect to the disposition of improperly indorsed ballots should be held to apply only to ballots which were never required by the law to be indorsed at all? A construction of a statute which changes its language so as to exclude the only subject upon which it can operate, and confines its provisions to one which will never **339 probably occur, is without a parallel in the history of jurisprudence. No words can suficiently express the surprise with which an original ballot reformer will learn that the only object sought by him in his struggle for ballot reform was the exclusion from the ballot-box of a ballot which could never get there except by an improbable accident.

A few words more upon a point to which I have already adverted,—the claim that a literal construction of this act would result in the disfranchisement of many voters. Those voters are termed innocent, well-meaning, and apparently unconscious instruments in the proceedings which resulted in placing in the ballot-boxes of Onondaga county upwards of 1,200 illegal votes. Why they are thought to be entitled to these descriptive appellations I am unable to understand. The law expressly forbids every voter from revealing to any one in the polling place the name of any candidate for whom he intends to vote, or to show his ballot, after it has been prepared, in such manner as to reveal its contents, and, in case of a violation of these provisions, he is deemed guilty of a misdemeanor. Section 35, Laws 1890, amended 1891. Can a voter who deposits a ballot revealing plainly and conspicuously the names of the candidates for whom he intends to vote claim to be innocent of a violation of these requirements? These voters most certainly cannot be said to be ignorant of the provisions of the law under which they are exercising their franchise, for the law itself requires that they shall inform themselves of its requirements respecting the form and character of the indorsements made upon their ballots, *426 and refrain from using such ballots. It is elementary that every citizen is presumed to know the law. This is the settled theory of the law. How, then, can it be supposed that these voters were either in law or fact unconscious of the character of the ballot they were using? It was known before the polls opened at each of these districts that the Republican ballots were improperly indorsed, and this was presumably the subject of public discussion around the polls. Yet these voters deliberately determined (for they are not permitted to vote without deliberation) to use them, notwithstanding their nonconformity with the law. The inspectors of election were required under serious penalties to examine the indorsement upon each ballot as it was voted, and to determine as to its conformity with the law, and the voter was also required to see that no mark on his ballot revealed the character of its contents. How, then, can it be consistently asserted that any ballot was deposited in ignorance, either by the voter or the inspectors, of the fact that it was improperly indorsed? The voter when preparing his ballot had before him three ballots properly indorsed and one improperly indorsed. Who should be responsible for the selection of the improperly indorsed ballots, and the consequences of a disovedience of the law, but the offending voter? But it is urged that a strict construction of the law must result in disfranchisement. This is true, but the law plainly contemplates such a result, and who can complain except those who are opposed to any restrictions whatsoever upon the action of an elector? No advocate of the reform ballot law can justly criticise a result which was in the minds of its authors when the law was drafted and enacted. They clearly contemplated this effect, and determmed that the injustice which a few might suffer through ignorance, willful blindness, or inattention to the requirements of law, should not be permitted to defeat the great good to be secured to the whole people by the adoption of an effectual scheme for the purification of elections. Can it, then, be seriously contended that voters may knowingly refuse obedience to the conditions imposed by the law, and still claim that their votes shall be counted as lawful ballots? Such a result would transform the elaborate scheme adopted as a reform measure into an elaborate farce, calculated only to embarrass and hamper the citizen, without adding a line or word to the statute looking to the disqualification of illegal or fraudulent voters or the purification of elections. It was an argument strenuously urged against the adoption of the law that its numerous provisions, complicated, novel, and technical as they were, would necessarily result in the disfranchisement of voters, but the advocates of the law contended that these results were the necessary concomitant of any efficient ballot reform law, and the legislature deliberately and intentionally approved the adoption of such restrictions and disqualifications. It is now too late to discuss the wisdom or policy of the law, and it is certainly not permissible to attempt its reform by judicial legislation. Such a course would not only destroy the effect of the present law, but would render any future legislation, however phrased, subject to the same power of construction, and liable to be rendered again ineffectual through the force of judicial interpretation. In accordance with these views, I think the orders appealed from should be affirmed, and the illegal ballots excluded from the computation of votes cast for senator.