The opinion
Bartlett and Vann, JJ.
(dissenting). We wish to record our emphatic dissent from the decision about to be rendered.
This
court (Matter of Stewart,
155 N. Y. 545 ), in a unanimous decision construed the provisions of the Election Law now under consideration. The principal question involved was whether the tally sheet, kept during the progress of the
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voting, was inferior as evidence to the ministerial statement of the inspectors made after the canvass is completed. It was held, that the tally sheet was primary evidence, and that the statement of the inspectors, although secondary evidence, was properly used where the tially sheet was not attacked. It was argued in that case that there was no provision in the Election Law for the correction of an erroneous record or mistake made and recorded in the tally sheet. This court unanimously held that such contention was unsound, using this language: “ If the tally sheet is attacked as being carelessly or fraudulently kept, so that thei-e is no reliable contemporaneous record of the canvass of the votes, it is the obvious intention of the statute that the boxes' of voted ballots preserved for six months under section 111 shall he opened and examined under the order of the Supreme Court, or a justice thereof, in order to determine the actual vote cast.” In that connection we quoted the pregnant word's of Chief Judge Andrews in
People ex rel. Hirsh
v.
Wood
( 148 N. Y. 147 ): “ The object of elections is to ascertain the popular will and not to thwart it. The object of election laws is to secure the rights of duly qualified electors, and not to defeat them. Statutory regulations are enacted to secure freedom of choice and to prevent fraud, and not by technical obstructions to make the right of voting insecure and difficult.”
This court further said in
Matter of Stewart (supra,
p. 549): “In order to appreciate the object of the present Election Law, it is necessary to recall the evils it was designed to remedy. The old law provided no adequate restraints upon the officials whose duty it was to canvass the votes. The inspectors made up a statement of the result, and immediately thereafter all the ballots and memoranda of the canvass were destroyed. The ballots were printed by the candidates, and the memoranda were not official. In the event of a fraudulent return made by the inspectors to the county board of canvassers, it was exceedingly difficult to make the necessary proofs in the absence of record evidence.”
We cannot understand why no attempt is made in the pre
*288
vailing opinion to distinguish the
Stewart
case, which is directly in point and was concurred in by all the judges.
One of the objects of the present Election Law was to preserve the tally sheets, the return of the inspectors and the ballots voted for six months after the election. It was clearly intended that if a re-count was necessary, the proceeding to secure it must be instituted within that time, as thereafter the ballots so kept may be destroyed.
In the case of
People ex rel. Brink
v.
Way
( 179 N. Y. 174 ) it was held, by a divided court, that under the facts of that case, which bear no resemblance to the facts of the case now before us, mandamus would not lie to compel a re-count of ballots returned to ballot boxes for preservation, and that the Supreme Court had no power to issue the writ. That case did not involve the tally sheet as primary evidence, but the failure of the town board of canvassers, or some of them, to discharge certain duties. The court did not allude co the
Stewart Case (supra),
and instead of overruling it or disturbing it in any way, sanctioned the main principle upon which that case rests by using the following language : “ If it is the duty of a town board of canvassers to re-con vene and re-count the ballots on their own motion upon their attention being called to violations of the statute by some one or more members, then the court had power to grant the writ, for the court has power to compel a re-count whenever the statute places upon the town board of canvassers the duty of re-counting. Thus section 84 of the Election Law provides that the sum of the ballots cast for any office as shown by the tally sheet must equal the number of ballots voted as shown by the ballot clerks’ return of ballots, and that ‘if it does not, then there has been a mistake in the count, and the ballots must be re-counted for such office.’ In such a case, as we see, it is by the statute made the duty of the board of canvassers to re-count the ballots, which means that they shall follow the procedure required by the statute for a count of ballots in the first instance. In the event of a failure to make such a re-count the court may by mandamus compel it. Any duty'which a
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statute provides that a board of canvassers shall in the future perform may be enforced by mandamus.” In that case the court also construed section 111 of the Election Law, which reads, in part, as follows: “Forthwith upon the completion of such original statement and of such certified copies thereof, and the proclamation of the result of the election as to each candidate, the ballots voted, except the void and protested ballots, shall be replaced in the box from which they were taken, together with a statement as to the number of such ballots so replaced. Each such box shall be securely locked and sealed, and shall be deposited with the officer or board furnishing such boxes. They shall he preserved inviolate for six months after such election and may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county, and at the expiration of such time the ballots may be disposed of in the discretion of the officer or board having charge of them.”
In brief, this construction was, that the object of preserving these ballots was to permit their examination but not a re-count, unless the tally sheet, as primary evidence, was involved or a proceeding in the nature of quo warranto was taken by a counted-out candidate for the purpose of establishing his title to the office. Excluding the latter possibility, it is difficult to see what object the legislature had in preserving ballots for six months for examination if a re-count was not to follow. The language of the statute would seem to need no construction when it provides that within the statutory period of six months these boxes “ may be opened and their contents examined upon the order of the Supreme Court or a justice thereof, or a county judge of such county.” Why should the Supreme Court, or a justice thereof, or a county judge, exercise the power here vested in it and them if it was for the mere purpose of a useless examination
%
The unanimous decision of this court in
Matter of Stewart (supra),
holding that the opening of these boxes was “in order to determine the actual vote cast,” is a reasonable construction and gives full force to the statute as written.
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While we are aware that the present dissent cannot change the decision about to be made, we prefer to be recorded as voting against a. construction that emasculates the Election Law, and, as it seems to us, ignores its plain provisions.
In the dissenting opinion in
People ex rel. Brink
v.
Way
( 179 N. Y. at p. 192 ) it was said :
“
With the boxes opened it is a mere question of arithmetic to ascertain the result with absolute accuracy. No discretion is possible. No decision of a question of fact is required and nothing but the purest ministerial duty is to be performed. When it properly appears that this ministerial duty has not been accurately discharged, and that the ballots have not been counted in the manner required by law, or if it appears that they have not been counted as they were cast, whether through fraud, ignorance or accident, the court has power to command the election officers to re-assemble and perform the duty which they failed to discharge, by re-counting the ballots, and in doing so to observe the safeguards which the statute casts around the process. This evidently was the primary object of the legislature in enacting that the ballots should be preserved. With the new evidence now attainable for the first time the opportunity for fraud or mistake is reduced to a minimum, provided the ballots when preserved may be promptly re-counted in a proper case. No statute is needed to expand the common law so as to meet the new situation created by the preservation of the ballots, for its flexibility and its ability to grasp new conditions has always been its strength and pride. When it finds a ministerial duty not done it commands that it be done. * * * The novelty of requiring a re-count by mandamus is owing to the fact that never before could a re-count be had. When the legislature ordered the ballots preserved they opened the door to the writ and invited it to enter. The statute makes it possible for the first time for the court to order the election officers to re-count and observe the law in so doiim. For the first time O they can be compelled to do their duty. The writ cannot be issued by the judges authorized to order the ballot boxes to
*291
be opened, but only by the Supreme Court, so that the danger of abuse is improbable. The risk is no greater than any citizen may have to run with reference to his life, liberty or property. Our decision in the
Stewart Case (supra)
establishes every principle required to affirm the order we are now considering.”
The present law has many defects, particularly in regard to the form of the ballot and the mode of voting the same, and radical amendments are required to secure a fair election without disfranchising a large number of voters by reason of complicated provisions that are not readily understood.
If it is to he the settled construction of- the Election Law that the ballots locked and sealed in the ballot boxes for six months after an election cannot be re-counted save in an action of quo warranto, which may drag for years through the courts, a new election law cannot he too soon drafted and enacted. It will certainly be a great disappointment to the citizens of the city of Hew York to he assured that they are in little or no better position in case of an alleged fraudulent count than under the old Election Law, when the burning ballots and memoranda formed a part of the bonfire which celebrated the current victory.
Cullen, Olí. J., O’Brien, Haight and Werner, LL, concur with Gray, J.; Bartlett and Vann, JJ., dissent in opinion.
Orders reversed, etc.