author: Herrick, J.

text:
    The People ex rel. Frank J. Sherman, App’lt, v. John Person et al., Composing the Board of Canvassers of the Town of Milton, Resp’ts.

      (Supreme Court, General Term, Third, Department,

      Filed May 16, 1892.)

    Elections—Town meetinqs—Ballots.
    A ballot endorsed “ excise” is an official ballotfor the purpose of voting for excise commissioners; but is not an official ballot for the purpose of voting for other town officers; and a ballot so endorsed but with the names of other town officers printed upon it, or a paster ballot for such officers pasted upon it, is not properly endorsed under the law, is not an official town ballot and cannot be legally received or counted by the inspectors.
    Appeal from an order of special term, denying motion for mandamus.

    Brackett, Butler & Baucus (Edgar T. Brackett, of counsel), for app’lt; 1J. E. McKnight and John Person (J & L'Amoreaux, of counsel), for resp’ts.
   Herrick, J.

is an appeal from an order of the special term denying a motion made for a peremptory mandamus to compél the defendants to recount the votes cast for the various candidates for supervisor at a town meeting of the town of Milton, Saratoga county, held March 1, 1892, and directing that the ballots cast for Eben S. Lawrence for supervisor that were endorsed “Excise,” or posters attached to ballots marked “Excise” cast for said Lawrence, be declared invalid, and directing said town board not to count such ballots and directing said board to declare the result and issue a certificate of election to the candidate having the greatest number of ballots cast for him, without counting said votes endorsed “ Excise ” or posters attached to ballots endorsed “ Excise.”

There is some dispute as to the facts set forth in the moving papers, but there are enough uncontroverted to enable the court to dispose of the matter; the material facts are undisputed. At the town meeting iri question the relator, Frank J. Sherman, and one Eben S. Lawrence, were competing candidates for the office of supervisor, and at such election there were four tickets, two for town officers, one headed by the relator Sherman, and the other by Lawrence; and two excise tickets, containing the name of a candidate for excise commissioner on each.

There were two ballot boxes, one marked “ Town ” and the other marked “ Excise.”

In the certificate of election signed by the board of town canvassers, Eben S. Lawrence is credited with having received 576 votes, and Frank J. Sherman with having received 571. Both parties aver that, three ballots endorsed “ Excise,” having pasted upon them paster ballots containing the names of Eben S. Lawrence and his associate candidates, for town offices upon them, were found in the ballot box marked “Town," and that such paster ballots were counted for said Lawrence for supervisor.

It is also averred by both parties that similar paster ballots were found in the “ Excise ” box, and that they were also counted for Lawrence.

The relator in his moving papers alleges that there were five such paster ballots found in the excise box; the defendants allege' that there were found certain excise ballots with such paster ballots upon them in the excise box, but do not state how many there were so found; and they distinctly state that the 576 votes credited to Lawrence included said paster ballots, and they do not deny that five such ballots were found in the excise box.

The watchers present in the interest of the Sherman ticket objected to the counting of the paster ballots pasted on the ballots endorsed “ Excise,” and asked to have them preserved pursuant to the provisions of the ballot act; such ballots were not preserved, but burned with the other ballots.

Whether done ignorantly or willfully, the case must be treated as if the ballots were still in existence and preserved as the law requires.

We have a full and complete description of such ballots so far as is necessary to enable us to determine what should be done with them. We know with reasonable certainty how many there were of them; and we cannot allow the object of the law to be defeated by a wanton or ignorant violation of its provision. Were the paster ballots thus destroyed properly counted for Eben S. Lawrence as a candidate for the office of supervisor ?

The board of canvassers and the court below seem to have fallen into error as to what is an official ballot under the law, and to have held that because the ballot endorsed “ Excise ” was an official ballot, that, therefore, a paster ballot for any officer or officers might be affixed to it and counted by virtue of the provisions .of § 25 of chap. 262 of the Laws of 1890, commonly known as the “Ballot Reform Law," or “Ballot Law.” The portions of that section pertinent to this question read as follows: “ The voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. Any voter may take with him into the voting booth or compartment a printed ballot of his own selection or preparation,to be known as a paster ballot, .containing the names of all the offices to be filled and of the candidates therefor for whom he desires to vote, which paster ballot may be gummed on the back thereof, and the voter may paste the whole of such paster ballot on any of the official ballots below the •stub.”

The permission to paste the'paster ballot on any official ballot, together with' a misconception of what is an official ballot, has •evidently caused the difficulty in this matter.

Under the law of 1890 there were as many official ballots as there were tickets nominated, and in addition a blank ballot, but the candidates for all offices were to be on a single ticket, the -elector could only vote one ballot, and there was only one ballot box provided for to receive the voted ballots, and when the statute said the voter could paste his paster ballot on any of the official ballots, it simply meant any one of the ballots that should be printed for the legally nominated candidates, and also the blank ballot. So long as all offices to be voted for were to be voted for upon a single ballot, and only a single ballot could be voted, and there was only a single box to receive them, there was not much chance for misapprehension. Bitt in the year 1891 the law was amended so as to provide for an additional ballot and an additional ballot box, so that now we have two kinds of official ballots, subdivided into as many more as there may be candidates or tickets legally placed in nomination.

The law as amended must be so construed, if possible, as to preserve its spirit, and give effect to its intent. At town elections the relator can now vote two ballots; both must be, however, •official ballots.

This leads us to consider, what is an official ballot?

One of its essential features is a proper and legal endorsement, . and a ballot not legally endorsed cannot be received or counted.

Section 17 of the ballot law, among other things, provides as follows: “ On the back of each ballot shall be printed in type known as great primer Eoman condensed capitals, the endorsement 1 official ballot for —-,’ and after the word 1 for ’ shall

follow the designation of the polling place for which the ballot is 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 endorsement, except as in this section provided. * * * Whenever candidates are to be voted for only by the voters of a particular district, town, village, city or county, the names of such candidates shall not be printed on any other ballots than those provided for use in such district, town, village, city or county, respectively.” In the year 1891 the ballot law was amended in various respects, among other things by adapting it to the election of town officers ; prior to that time all officers were to be voted for •on a single ballot. The law was so amended as to provide for a separate ballot for excise commissioners and for two ballot boxes, whereas under the law of 1890 only one ballot box had been allowed.

Section 17. “ There shall be but one ballot box at each polling place for receiving all ballots cast for candidates for offices.”

• Section 38, chapter 296, of the Laws of 1891, provides as follows : * * * “ The names of candidates for the office of excise commissioner shall be printed in a different ballot from the one containing the names of candidates for other town offices, Such ballots shall be endorsed ‘ Excise,’ and shall be deposited when voted in a separate ballot box, which shall also be marked ‘ Excise.’ They shall be furnished by- the clerk as the other ballots are, and shall be substantially in the same form, but not. less than six inches long. The ballots containing the names of candidates for other local offices shall be endorsed 1 Town.’

Section 29 of chapter 296 of the Laws of 1891 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 endorsed and numbered.”

Section 31 of the same law provides that “No ballot that has not the printed official endorsement shall be counted, except such as are voted in accordance with the provisions of section twenty-one of this act.” The exception relates to the provision made for voting when official ballots have not been delivered or have been destroyed. It will thus be seen that the proper legal endorsement of the ballot is regarded as an essential and vital feature of the ballot law; the reasons for so regarding it must occur to every one, and it is not necessary to recapitulate them now.

It seems to me unnecessary to argue that an official excise ballot is not an official ballot for other town officers, or vice versa.

In the Nichols case, 129 N. Y., 395; 41 St. Rep., 713, the ballots rejected by the court were, in a sense, official ballots: that is, they were properly endorsed if used in the proper district; but the official ballot for election district No. 1 was not the official ballot for election district No. 2.

So the ballot endorsed “ Excise ” is an official ballot for the purpose of voting for excise commissioners, but is not an official ballot for the purpose of voting for other town officers; and a ballot with the names of candidates for town offices printed upon it and endorsed “ Excise ” would not be legally endorsed under the law, and would not be an official town ballot within the meaning of the statute, and could not be legally received or counted by the inspectors, and the legal effect is not changed if the name of the candidates for town officers are printed on another piece of paper, and that paper pasted on the ballot endorsed “ Excise.”

To permit this to be done, would open the door to fraud.

The voter is entitled to vote the town ticket and the excise ticket; he could thus vote his choice for town officers, by means of the ballot endorsed “ Town,” and put a paster for the same officers upon the excise ballot, and in that way vote twice for the same officers. It was attempted to answer this objection by saying that both the excise and town ballots being numbered alike, the fraud would be detected. The learned counsel forgot that the numbers are on the stubs, that the stubs are torn from the ballots before they are deposited in the box, so that when the ballots-come to be counted they have no numbers, so that the fraud could not be detected.

If any voter voted both ballots, the number in the box might over-run the poll list, but in drawing out to equalize the poll list-the beneficiary of the fraud is no more likely to have the ballots cast for him drawn out than is the person injured by the fraud.

The court below in holding that these paster ballots should be ■counted did so upon the theory that effect must be given to the intentions of the voter. The answer to that is contained in the principal opinion in the Nichols case, 129 N. Y., 401; 41 St Rep., 713, as follows :

“ Tire 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 render his will and intention effectual at the election he must comply with at least all substantial requirements of law.” And again' at page 408 the court says:

“ 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. Bui 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 of accident, of ballots which the law declares shall not be counted, the courts have no power to help him. * * * The law contemplates that the elector will not blindly rely upon any one, not even the election officers, in the preparation of his ballot. If he is handed an official ballot with a distinguishing mark upon it, or an improper endorsement, 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 endorsement was in conformity with the statute. * * * 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 endorsement, and that they could not without some incon-' venience 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 purposes 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.”

Also the language of Chief Justice Ruger, in the same case,1 found at page 420: “ 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 a forfeiture of any benefits sought to be derived from such illegal ballots.”

The language I have quoted applies with peculiar force to the facts in this case, and at the same time shows how important the court regards the proper endorsement of the ballot, and the strictness with which the provisions of the ballot law are to be construed.

There is another reason why the paster ballots pasted upon the ballots marked Excise and found in the town box should not be counted. In the Nichols case great stress was laid upon the fact that using ballots in one district endorsed for another district afforded a means of identifying the voters, destroyed the secrecy of the ballot, and opened the door for the corruption of the voters, thus nullifying the intention of the law, and that for those reasons the ballots should not be counted. So the use of ballots marked Excise to vote for town officers would afford an easy means of identification, and would nullify the law. If paster Ballots can be received and counted under the circumstances disclosed in this case, then the provisions as to endorsement are of no effect. The word Excise is not the legal, official, endorsement of the ballot for town offices, nor the word Town the legal, official endorsement for the excise ballot, and if the provisions of the statute as to not counting ballots not properly endorsed are to be •enforced, then the paster ballots for town offices found upon the ballot endorsed “Excise ” should not be counted.

For these reasons the order of the court below should be reversed and a peremptory mandamus issue directing the defendants to recount the ballots cast for the office of supervisor, and to exclude from such count, and refrain from counting, the paster ballots found on the ballots marked “ Excise,” and that they issue a certificate of election to the candidate for supervisor receiving the greatest number of ballots exclusive of ballots for supervisor pasted on the ballots marked “Excise.”

Order reversed, with fifty dollars costs and printing disbursements, and let a peremptory mandamus issue in accordance with the views expressed in this opinion.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Herrick, J. Mayham, P. J.

license: Public Domain

text:
    The People ex rel Henry Bradley et al., Resp’ts, v. Thomas G. Shaw et al., Composing the Board of Canvassers of the Town of Minerva, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1892.)

    1. Elections—Canvass—Eligibility oe candidate.
    Inspectors and canvassers have no business to decide whether a person voted for is eligible or not; it is their duty to count the votes cast for any and every person whose name appears upon a ballot printed and endorsed as the law directs. The law does not restrict the voter to the candidates placed in nomination by political parties or by petitions of citizens, and it is not necessary that a person’s name should appear upon the official ballot to enable the voters to vote for him.

      2. Same—Marked Ballots.
    The town clerk having refused to furnish ballots for the ticket headed by relator Bradley, paster ballots were prepared which, besides the names, of the candidates for the other town offices, contained the name of the candidate for excise commissioner, and this was pasted on the official town ballot. All the ballots cast for relators’ ticket, over 100, were voted by means of such paster ballot, and all had the name of the excise commissioner thereon. Held, that although the votes thus cast for excise commissioner could not be counted because not upon a ticket legally endorsed asan excise ticket, the mere fact that the ticket contained his name-did not make the ballot a marked one in such sense as to require its rejection, as to the other candidates, in the absence of proof that it was so marked for the purpose of identification. (Mayham, P. J., dissents.)
    3. Same—Paster ballots.
    The provision of the ballot law requiring a paster ballot to be pasted! on the side opposite the official endorsement is directory merely; the mandatory provision being that requiring that it beso attached as not to be visible; and hence the placing of a paster ballot upon the outside of the official ballot does not render it invalid if such paster ballot is not visible when the ballot is folded.
    Appeal from order of special term, directing the issue of at writ of peremptory mandamus requiring respondents to reassemble and declare the result of a town meeting, allowing to relators, the number of votes cast for them by certain paster ballots.

      John II. Cunningham (J. W. Houghton, of counsel), for app’lts Foley & Wing (John Foley, of counsel), for resp’ts.
   Herrick, J.

This is an appeal from an order made at a special term upon the relation of Henry Bradley and others, directing a peremptory mandamus to issue against the defendants and appellants, composing the board of town canvassers of the town of Minerva, Essex county, directing them to re-assemble in said town as such canvassers and declare the result of a town meeting held therein on the 1st day of March, 1892, allowing to the several relators the number of votes cast for them stated in the moving affidavits and called paster ballots, and directing said board to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such paster ballots.

From the papers the facts appear to be substantially as follows. On the 24th day of February, 1892, a caucus or primary was held in the town of Minerva, Essex county, for the purpose of nominating candidates for town offices, and a ticket was nominated headed by William H. Sullivan for supervisor.

On the evening of the same dajr another caucus or primary meeting, called an independent caucus, was held in the same town apparently by those dissatisfied with the result of the first caucus, and a ticket for town offices was nominated headed by the relator Henry Bradley for supervisor. Certificates of both nominations were filed with the town clerk.

A protest was filed with the town clerk against his printing or delivering to the election officers any ballots for the ticket nominated at such independent or second caucus, on the ground that “Ho votes were cast in the town of Minerva at the last annual election or town meeting representing any party such as required by law, giving them authority to call a caucus to make nominations.

“ Second. The so-called certificate of nominations is not sworn and certified to as required by law and is 'not proper in form.”

The town clerk only delivered to the election officers official ballots containing the names of candidates nominated at the first caucus, which for convenience we will designate the “ Sulliyan ” ticket. ' The relators composing the Bradley ” ticket, ascertaining that no official ballots would be distributed with their names ■on, caused paster ballots to be printed; these paster ballots in addition to the name of candidates for other town officers contained the name of their candidate for excise commissioner.

The statement of result shows that ninety-nine ballots were cast for Sullivan for supervisor, the other candidates on his ticket receiving from 96 to 107, and that Bradley received 110 vote's for .supervisor, his associates receiving from 107 to 116 votes.

The votes for the several candidates on the Bradley ticket were .all cast by means of the paster ballot before described, the same .appearing to have been voted by pasting them on the official ballot containing the names of the candidates on the Sullivan ticket.

The defendants refused to count any of the votes for the Bradley ticket.

■The objections made to canvassing or counting the vote for the Bradley ticket are these:

First. That the candidates on the Bradley ticket were not regularly placed in nomination pursuant to §§ 2, 3 or 5 of chapter 262 •of the Laws of 1890, known as the Ballot Reform law, and that, therefore, they were not legally candidates, not entitled to be voted for and not eligible to office at the said town meeting.

Second. Because the paster ballots containing the names of the ■candidates on the Bradley ticket for town offices contained, in addition thereto, the name of a candidate for excise commissioner. There was the additional objection made to counting some of such' paster ballots, how many is not stated, that they were pasted upon the outside of the official ballot.

So far as appears from the papers in the case, the ballots deposited or voted were, so far as their exterior is concerned, in proper legal form, and it was the duty of the defendants to have counted them, no matter what defects appeared upon ■.the inside when they were opened. Inspectors of election and ■boards of canvassers have no business to decide whether a person voted for is eligible or not; it is their duty to count the votes •cast for any and every person whose name appears upon a ballot printed and endorsed as the law directs.

There is a procedure provided in the law for ballots that are for any reason defective, that will be referred to later on.

While it was the duty of the inspectors to count all the ballots in controversy here, and leave to the courts the office of determining the legal questions involved, they have not done so, and the •court must meet the questions as they are presented.

The first objection made to counting the votes cast for the Bradley ticket, that such ticket was not legally nominated, and that, therefore, they were not eligible as candidates, is not tenable.

The ballot law was not intended to restrict the choice of the people. It was intended, on the contrary, to secure to them greater freedom and independence in voting, to insure to them the utmost freedom in their choice of public officers.

The title of the law is, “ 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.”

To restrict the voter to the candidates placed in nomination by political parties or by petitions of citizens, is very far, it seems to me, from promoting independence in voting, and the law makes no such restriction, but provides for- the very reverse. Section 25 of chap. 262, Laws of 1890, as amended by § 12 of chap. 296 of the Laws of 1891, is in part as follows :

“ The voter may write or paste upon his ballot the name of any person for whom he desires to vote for any office. Any voter may take with him into the voting booth or compartment a printed ballot of his own selection or preparation, to be known as a paster ballot, containing the names of all the offices to be filled and of the candidates therefor for whom he desires to vote, * * * and the voter may paste the whole of said paster ballot on any of the official ballots.”

It will be observed that the statute says the voter may vote for any person for any office; and it recognizes the fact that he may desire to vote for some person or persons whose name is not upon any of the official ballots, and provides tbat'he may write or paste it on. It also affords him the means of making up an entire ticket to suit himself of names not upon the official ballots by means of the paster ballot The official ballot is simply a part of the machinery devised to insure secrecy and independence in voting, • is printed at public expense to insure uniformity in the ballots, and to save candidates the expense of printing, and thus cut off one reason or excuse for raising money to be used in fact for corrupt purposes ; while the law provides for official ballots it does not provide for official candidates, and it is not necessary that one’s name should appear upon the official ballot to enable the voters to vote for him.

The second objection to counting the Bradley ballots, the fact that the name of a candidate for excise commissioner was printed with the other town offices on the paster ballot, presents greater difficulties.

The votes cast for such candidate for excise commissioner cannot be counted for him because not upon a ticket legally endorsed as an excise ballot, as held by this court in the case of the People ex rel. Sherman v. Person et at, decided at this term. The serious question is, did the printing the name of the office of excise commissioner, and of a candidate therefor, upon the ballot, vitiate the ballot as to the candidates for other town offices ?

In a sense the unauthorized printing of the name of this office and the candidate therefor upon the town ballot made it a marked ballot, or a defective ballot, but that does not of itself vitiate the ballot, or justify the inspectors of election or board of canvasser's in rejecting it; it is only when it is marked with the intent that it may be identified that it is to be rejected, and that rejection is not to be by the inspectors. Section 16, chapter 296, Laws of 1891, provides that such ballots shall be preserved with a statement of the objections made to them, that they shall be counted in estimating the result of an election, and then provides for a judicial proceeding to determine their validity.

The ballot is not to be excluded until the intent is ascertained and determined by the court Nichols case, 129 N. Y., 407; 41 St. Rep., 713.

The only reason that is assigned for excluding these ballots from the estimate of votes is that they are in effect marked ballots. But the law assumes that there may be ballots with marks upon them that may be counted; otherwise why preserve them for the court to say whether they shall be counted or not. If all marked ballots are to be rejected; if the fact that some mark, name, or word not authorized by law appears on the inside of a ballot is of itself the evidence and proof that it was placed there with the intent that the ballot may be identified, there would be no obligation in preserving the ballot for the court; there would be nothing for the court to pass upon, nothing to determine except that there is something on the ballot not authorized by law. It seems to me that the plain meaning and intent of the statute is, that the court shall determine whether the mark on the ballot is placed there with the intent of subsequently identifying the ballot and tracing it to the voter, and if it can find no such intent, then the ballot is to remain as counted.

I realize the difficulties that must necessarily arise from such a construction; proof of a fraudulent intent must always be difficult and sometimes impossible; and permitting any ballot to be counted that has anything upon it except wliat the law authorizes doubtless opens the way to marking it with intent to identify the voter.

The other construction, that is, rejecting every ballot having anything upon it not authorized by law, without any further proof of intent, is also subject to serious objections, and would open the door to just as great dangers.

The ballots may be marked by the adverse party for the very purpose of having them rejected; dishonest election officers may mark them, to afterwards reject them in the count; and then having marked, and rejected them, immediately destroy them, as was done in a case recently before us, leaving no trace of their wrong doing, nothing for the court to pass upon; such a construction would place our elections completely in the hands of the innumerable boards of inspectors in the state; the rejection of a few ballots in each election district, or even a portion of them, changing the result of a state election.

Upon the whole it seems to me that the safest course is to leave nothing for the inspectors to do except to count the ballots in the box. They are prohibited from receiving any having any mark on the outside or not properly endorsed, and if anything appears on the inside of the ballot not authorized by law, to preserve such ballot ; then those interested have ample opportunity to deliberately investigate the matter, and after such investigation, if they think proper, present it to the court for its determination.

But whichever course may be best is not for the court to determine ; it cannot legislate, it can only Interpret and construe,, and I cannot see any other interpretation or construction to be given to the statute except the one I have indicated; that is, for the court to determine in each particular case whether the marks or unauthorized words were placed upon the ballots with intent to identify the voter. Was then the name of a candidate for excise commissioner placed upon the town ballot for the purpose of identifying the voter? There is nothing in the case before us to show* that it was; all the ballots for the Bradley ticket were alike in that respect, the same candidate appeared on all the ballots, and so far as the case discloses there is nothing to indicate any unlawful or corrupt intent, except the bare fact that the. name of such candidate appeared, not upon a ballot endorsed Excise as the law requires, but on the paster ballot for other town officers, and so far as appears in the case they had no separate ballot for excise commissioner.

To hold under such a state of facts that these ballots were marked for the purpose of identification within the meaning of the law would be to hold in effect that whenever any name, word, or mark not authorized by law appears upon a ballot, that that fact in and of itself is evidence that it was placed there with the intent of subsequently identifying the voter; such a holding or construction we liave already seen is not warranted by the wording of the statute. I, therefore, cannot find that the paster ballots in question were printed or marked with the intent that the same might be-identified; consequently they should not be rejected for that reason.

The remaining objection to be considered is that some of the-Bradley paster ballots, how many does not appear, were pasted on the outside of the official ballots. If the paster ballot is so affixed, to the official ballot as to disclose for whom the voter is voting, then the ballot should neither be received nor counted, because-then it would be in violation of the secrecy of the ballot, and would afford a means of identifying the voter; but in this case it. does not appear whether it was so affixed or not.

The provisions of the statute are .as follows:

“ 1st. That it shall be pasted on the side opposite the official endorsement.

“ 2d. A paster shall be so attached to the ballot that when the ballot is folded no portion of such paster ballot shall be visible,” Section 12, chap. 296, Laws of 1891.

A voter should not be deprived of his vote except at the behest-of some plain and clear requirement of the law. Reading the two-clauses I have quoted together it seems to me that the first one is directory merely; that the essential, and therefore the manda toyy one, is the second, that is the one that requires that it should be so attached as not to be visible.

The case does not show whether the paster ballots in question were so attached as to be visible or not, and the court has no right to assume that the law was violated. There is not sufficient evidence before us to warrant the court in rejecting the ballots for the manner in which they were attached to the official ballots.

Some of the affidavits state that some of the Bradley ballots were marked for identification, but do not state how they were so marked, or how many there were of them, and they have not been preserved as the law requires, so that we have nothing before us to pass upon or determine in that regard.

This disposes of all the objections made to counting the Bradley ballots, and we find in none of them any sufficient reason for rejecting such ballots.

Let the order for a peremptory mandamus be affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurs.

Mayham, P. J.

(dissenting)—I fully concur in all of the conclusions reached by my brother Herrick in this case, except that relating to the effect of voting on the town ballot for the commissioner of excise; but I cannot concur with him as to the effect of placing that name on the ticket. It appears to me that that was such a marked ballot and cast under such circumstances as to vitiate the entire ticket on which it was voted.

By § 38 of chapter 262 of the Laws of 1890, known as the Ballot Reform law, as amended in chapter 269 of the Laws of 1891, it is provided that, “ the names of candidates for the office of excise commissioner shall be printed on a different ballot from the one containing the names of candidates for other town offices. Such ballot shall be endorsed “ Excise,” and shall be deposited -when voted in a separate box, which shall also be marked “Excise." * * The ballots containing the names of candidates for other local offices shall be endorsed “ Town.” Each of the paster ballots of the Bradley ticket voted contained the name of John McCardle for commissioner of excise pasted upon the official ballot marked “Town.”

It is agreed that this vote cannot be counted for excise commissioner because not upon a ticket legally endorsed. People ex rel Sherman v. Person et al. It follows therefore that the name and designation of McCardle constituted no part of the ticket endorsed “ Town,” and was, as has been said in the prevailing opinion, in a sense an unauthorized name, and mark upon the town ballot Did it per se vitiate that ballot? Or must there be evidence aliunde the marked ballot itself that it was done for the illegal purpose of its subsequent identification ? It seems to me that a more direct and effectual method of evasion and nullification of the law could not well be suggested than that of placing an unauthorized name of office on an official ballot, and yet to hold that these were marked ballots, voted in violation. of the ballot reform law, and therefore not capable of being counted, will in effect disfranchise more than one-half of all the voters who voted at this town meeting. Consequences so grave and far reaching should not be visited upon the voter, unless the courts in administering this law are by its letter and spirit required to inflict such disfranchisement.

In interpreting this law, so vitally affecting the voter on. the one hand, and the great public interest to be subserved on the other, the court should carefully avoid what is sometimes called judicial legislation, by importing into it matters not placed there by the legislature; or on the other hand, what would be equally unauthorized, repealing by judicial interpretation any of its. provisions.

One of the leading purposes manifestly aimed at in the enactment of the law, was that the ballot cast by each voter should be 'absolutely secret. As was said by O’Brien, J., in the People ex rel. Nichols v. The Board of County Canvassers of Oneida County,. 129 N. Y, 402 ; 41 St. Rep., 713 : “ The general 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.’ ” In the discussion of the requirements of this act so far as it relates to the secrecy of the ballot, the judge uses this language : “ 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 the political complexion of the candidates voted for.” The manifest object of the legislature in making the ballot absolutely secret was to minimize the great and growing evil of bribery of the voter, by removing- all possible means of knowledge on the part, of the bribe giver that the vote for which he gave, or contracted to give, the bribe, would be deposited according to contract, and further to secure to the employee immunity against the oppressive-coercion of his employer, and thus to secure to the employee-the right of a free ballot.

It is difficult to see how this central idea of secrecy, which seems to be the soul of the ballot reform law, can be effectual for any of the beneficial purposes for which it was intended, if the method adopted in the Bradley ballot can be adjudged to be legal,, and that ballot upheld and counted.

It does not seem sound or logical to hold that numbers give immunity, and that because there are over one hundred violations of the ballot law, that, therefore, the act escapes its condemnation ; such reasoning would not commend itself to our judgments as sound in almost any other moral or legal question. If but one, or ten or even twenty such ballots had been found in the-box, it will hardly be questioned that they would be denounced as marked ballots, and rejected from the count, unless this method of marking ballots can be held to be allowable under the law. If' it can be held that ballots marked in this manner must be counted for all the candidates properly voted for on the ticket designated “Town,” then the door will be opened at every town election for persons desiring to promote the election of the candidates of their choice to place on a paster ballot the name of some person for an office not to be voted on the town ticket, and with that sure mark of identification contract for the payment of a bribe to each person who receives that ticket from him, and shows by the vote when canvassed that the contract was performed; and that the same scheme may be worked by an employer upon his employee and the purity and freedom of the ballot be thus completely destroyed and the law which was designed to protect the purity and sanctity of the ballot become an instrument of most gigantic fraud.

But it is urged that by § 35 of the ballot reform act, as amended, it must be shown that the vote was marked and cast with the intent that it shall be afterwards identified, before the ballot is vitiated, and that the court must find that intent before the vote can be rejected. The language of that section as amended upon this subject is as follows: “ Ho voter shall place any mark upon his ballot, or do any other act in connection with a ballot, with the intent that it may be identified as the one voted by him; no person shall place any mark or do any other act in connection with a paster ballot with the intent that it may afterwards be identified as having been voted by any particular person. When a ballot has been deposited in a ballot box, upon which or upon a 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 intent that such ballot shall afterwards be identified as the one voted by him, the same shall be void and of no effect. ”

It is manifest that the legislature by this provision, required that the marked ballot must, to be adjudged void, be deposited by the voter with knowledge, and with the intent that it shall be afterwards identified, but the act furnishes no rule of evidence by which the court shall judicially declare and decide that question of knowledge and intent

Resort must therefore be had to the general rules of evidence-for the determination of those facts. We start with the presumption that knowledge of the law is to be imputed to the voter, and that when he voted for a commissioner of excise on the town ticket he did so knowing that that office could not be legally voted for on such a ticket, and that his name on it made such a ticket a marked ballot. The town ticket must contain only the names and designation of the officers to be voted for on it. In the case of the People ex rel Nichols v. The Board of Canvassers, supra, Gray, Juclge, in discussing that question, uses this language: “ The plan embodied in the law was to have a uniform ballot. That essential feature was secured by provisions requiring all ballots to be prepared by a public officer and to be exactly alike in every possible respect externally in the official endorsement, and differing internally only in the candidates for office upon the ballots prepared for different political parties.”

This language applies as well to a paster ballot voted upon an official endorsement as to the official tickets printed in full by the clerk, or under his direction. With the legal presumption to which we have referred, and which obtains in this case, it follows that the voter who deposited the town ballot containing the name and designation of a candidate for excise commissioner did so charged with the knowledge that he was voting a marked ballot. Did he intend that it should afterwards be identified as a ballot voted by him ? Of this there is, and from the very nature of the case there can be, no proof, except from the legal inference to be deduced from such act. The law raises a presumption that every person intends the legal consequences of his acts. One of the legal consequences of the act of voting a marked ballot is that it may be identified, and if that was the consequence intended by him, then both conditions to render the ballot illegal, void and of no effect are established.

It is true that the methods of reasoning by which this conclusion is reached may be somewhat subtle, yet the difficulty to be ■encountered in the enforcement of this much needed and salutary law not only justifies strict construction, but calls upon the courts to adopt all the legal and legitimate means in their power to give ■effect to its provisions. In the present case, as has been suggested, the rejection of the ballots thus shown to be marked may look like the disfranchisement .of the voters, but that was the result of disobedience of the law. In the case of People v. Board of Canvassers, cited supra, and upon that subject, O’Brien, J., says: '“■But it is said that this result will disfranchise the electors who cast these ballots in good faith, believing that they were 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 the 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 upon them, or some of them, the voter using them might be as innocent 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.”

These reasons apply with equal, and I think with greater force to the altered ballot, by .the use of a name and an office not entititled to be voted for in the ticket, as to the numbering on the label " or endersement on the outside of the ticket. It is safe to say that if this method can be resorted to, and ballots thus marked can be voted and counted, the facilities for bribery and coercion have been vastly increased bv the provisions of what was intended to be a ballot reform law. But it is insisted that tlic construction contended for is dangerous in this, that the inspectors of election would have it in their power to throw out ballots on the grau nd that they were marked, and thus completely change the result of an election. I do not think that such a result could follow, for the reason that they are required to preserve all defective ballots, and this kind of ballot is a marked, and therefore defective ballot, and the inspectors would have no right to destroy it, but must retain it, and thus the questions as to the character of the vote, and the right of having the same counted, could be brought before the courts for their determination.

It is only in case of improper or unauthorized label or caption, appearing on the outside of the ballot, that the inspectors are authorized- and required to reject the ballot altogether. If the alteration or defect appears on the inside of a ballot, which can be known to the inspectors only on the canvass of the votes, the inspectors are to treat it as a defective ballot, and preserve and return it with their certificate, so that a party aggrieved or having any interest in the result may take the case to the courts, where the right of the parties may be judicially declared, as in the case at bar. The question, therefore, is not what the inspectors may do, but what the court will do, where the court is satisfied from the certificate of the canvassers that ballots sought to be counted are concededly marked, so that they may be identified if desired,, and when the voter knew, or is presumed to have known, that he was voting a marked ballot at the time of casting the same. Under such circumstances, it seems to me, that the intention of the voter must, as I have attempted to show, be presumed from his act, -and that any attempt on the part of the court to find an innocent motive, and thus uphold the ballot, would be vesting in the court the exercise of a discretion not given by law, and while its exercise may not be fraught with the danger that might be apprehended from the exercise of such discretion by the 'inspectors of election, yet it is one which the courts should not voluntarily assume where, by the application of legal rules, the ballot is by the law denounced as a marked ballot.

I am, therefore, of the opinion that the order awarding a peremptory writ should be reversed and the writ should be quashed.

Order affirmed, with fifty dollars costs and printing disbursements.


author: Putnam, J. Herrick, J.

text:
    The People ex rel. George W. Post, App’lt, v. Isaac B. Cross, Sheriff, Resp’t.

      (Supreme Court, General Term,, Third Department,

      Filed June 1, 1892.)

    1. Extradition—Interstate.

      The doctrine applicable to cases of foreign extradition, that the prisoner cannot be tried for any other offense than that for which he was extradited, does not apply to cases of interstate extradition.
    2. Same.
    Where a prisoner is extradited from another state, he may be tried for any offense which he may have committed here.
    Appeal from order of special term, upon return of writ of habeas corpus, denying petition of relator and remanding him to custody.

      John H. Gleason, for app’lt; James W. Eaton, Dist. Att’y, for resp’t.
   Putnam, J.

The relator, George W. Post, being indicted by the grand jury of Albany county at a court of sessions held on February 13, 1889, for the crime of grand larceny, was ón October 9, 1891, arrested on a requisition by the governor of New York'to the executive of Wisconsin in the latter state (his then residence), brought to this state and delivered to the sheriff of Albany county. During the same month he was arraigned on said indictment, and pleading not guilty, was committed to the custody of said sheriff upon a bench warrant issued by the district attorney. On November 30, 1891, relator, at a court of oyer and terminer in said county, was indicted by the grand jury for robbery in the first degree, and being arraigned pleaded not guilty. On April 21, 1892, the former indictment for grand larceny was, by order of the court, duly quashed, and on that day, and before the prisoner was released, the said district attorney issued to the sheriff a bench warrant on the indictment for robbery, and relator is now imprisoned thereunder. He claims and insists that being brought to this state on the requisition of its governor on the charge of grand larceny, he cannot be held here on a charge for another and different crime until he has had a reasonable time to return to the state from which he was brought, and hence that he is now entitled to be discharged.

It may at this time be deemed settled that a fugitive from justice extradited from a foreign country can only be held and tried for the offense for which his extradition was obtained. Formerly there was some conflict of authority on this question, but the decision of the supreme court of the United States in U S. v. Rauscher, 119 U. S., 407, has settled the law in this regard.

Does the doctrine as laid down in that case and kindred authorities apply in cases of interstate extradition ? The question is a debatable one ; but in my judgment there is a clear distinction between cases of foreign and interstate extradition. In the former case the right to demand a fugitive from justice depends upon treaties between governments. In United States v. Rauscher, supra, it was held:

“(1.) That a treaty to which the United States is a party is a law of the land, of which all courts, state or national, are to take judicial notice, and by the provisions of which they are to be governed, so far as they are capable of judicial enforcement.”

“(2.) That on a sound construction of the treaty under which the defendant was delivered to this country and under the pro■ceedings by which this was done, and acts of Congress on that subject, Revised Statutes, §§ 5272,5275, he cannot lawfully be tried for any other offense than murder."

“(3.) The treaty, the acts of Congress, and the proceedings by which he was extradited clothe him with the right to exemption from trial for any other offense until he has had an opportunity to return to the country from which he was taken for the purpose alone of trial for the offense specified in the demand for his surrender. That national honor also requires that gpod faith shall be kept with the country which surrenders him.”

The same justice who delivered the opinion in the Eauscher case, in. Ker v. Illinois, 119 U. S. Rep., 443, speaking of the Eauscher case, says: “ It was there held that, when a party was -duly surrendered by proper proceedings under the treaty of 1842 ■with Great Britain, he came to this • country clothed with the protection which the nature of such proceedings and the true ■construction of the treaty gave him. One of the rights with which he was thus clothed, both in regard to himself and in good faith to the country which had sent him here, was, that he should be tried for no other offense than the one for which he was delivered under the extradition proceedings."

The treaty of 1842, referred to in the said case, provided for the delivery of a fugitive in cases of certain mentioned crimes, and that said delivery should only be made upon such evidence of criminality as would justify his apprehension and commitment for trial according to the laws of the place where the fugitivo shall be found if the crime or offense had been there committed.

The right to arrest a fugitive from justice in any other state of the Union is given by the constitution. It exists as to all crimes. Ho proof is required except a copy of the indictment or an affidavit made before a magistrate charging the person demanded with a crime properly certified.

There is a clear distinction between the two cases. In the one ■case the right of extradition depends upon a treaty or contract between two countries. It only exists as to a few crimes, and there is a provision for the giving of evidence before the rendition of the fugitive. In the other case the right of extradition is .given by the supreme law of the land and applies to all crimes, including misdemeanors. There is no examination had, the fugitive being delivered up on the copy of the indictment or an affidavit duly certified.

In cases of foreign extradition the right to demand fugitives is limited, only to be exercised in a certain way and after certain proceedings, and in cases of a limited number of crimes. There are crimes under our laws, such as political ones and other offenses, for which foreign nations would not wish or agree to surrender to us fugitives from justice. Hence it is important that in extradition proceedings from foreign countries the criminal should only be tried for the crime for which he was brought within our jurisdiction ; the crime on account of which the foreign nation has ■consented to surrender him to us, for which we demanded his rendition.

I think, therefore, that, while in cases of fugitives from a foreign country delivered to us, under the provisions of a treaty, it is proper that the criminal should only be held for the crime on account of which the foreign country surrendered him to us, because in fact such a procedure is according to the contract under which the criminal was delivered to us, as justly held b}r the supreme court of the United States, no such reason exists why a fugitive from justice from this state arrested in another state and brought here should not be tried for another offense than the one for which he was arrested.

The reason stated in Eauscher and kindred cases why one extradited from a foreign country should not be brought to trial for an offense different from the one for which he was delivered up does not exist in cases of interstate extradition. In such a case the-fugitive is surrendered by virtue of the supreme law of the land. The authorities demanding his rendition have an absolute right to such surrender in all cases of crime. They have as clear a right, under the law as if the fugitive, instead of being in another state, was in another county of this state. The procedure is different in the two cases, but, in both, the arrest and rendition of the criminal is an absolute right under the law. That law contains no-provision, express or implied, that a fugitive shall not be tried for an offense other than the one for which he was delivered under the extradition proceedings. Nor is there any good reason why the fugitive, being brought within our state, should not be held, and tried for any and every offense he may have committed here.

The above views are supported by several well considered cases. See State ex rel. Brown v. Stewart, 60 Wis., 587; In the Matter of Noyes, 17 Albany L. J., 407; U. S. v. Watts, 14 Fed. Rep., 138-139 ; People ex rel. Suydam v. Sennott, 20 Albany L. J., 230; Hackney v. Welsh, 107 Ind., 253.

There are several authorities cited by the appellant holding a contrary doctrine, among which are State v. Hall, 40 Kans., 338; In the Matter of Cannon, 47 Mich., 481; Matter of Hope, 7 N. Y. Crim., 406; Matter of Baruch, id., 325; Ex parte McKnight, 28 N. E. Rep., 1034.

It must be conceded that these conflicting cases leave the question presented to us in this case a somewhat doubtful one. The-views, however, enunciated in the above cited case of People ex rel. Brown v. Stewart, and kindred cases, accord with my opinion, and I think should be followed in the disposition of this case. And I desire to refer to the said last mentioned case as containing a full, able and complete discussion of the question, under consideration.

It has been determined that a fugitive from justice who had been kidnapped and brought into the state where the crime was-committed, being so within the jurisdiction of such state, although illegally brought there, may. nevertheless, be held and tried for his offense. In re Miles, 52 Vt., 609 : State v. Brewster, 7 Id., 118; State of Iowa v. Ross and Mann, 21 la., 467 ; People v. Rowe, 4 Parker Crim., 253 ; Dows' Case, 18 Pa., 37; Mahon v. Justice, 127 U. S., 700; Ker v. Ill., 119 id., 437-444.

I am unable to perceive that the relator, legally brought within-our jurisdiction on'a criminal charge which has been abandoned, and thus being within the state, is in any better condition as to-exemption from arrest under the indictment against him than he would have been if brought here unlawfully by kidnappers.

If the relator were within this state by virtue of a treaty and contract between nations which impliedly provided that he should only be brought to trial for the offense on account of which he was extradited; or if the constitution and laws of the United States as to inter-state extradition contained any provision as to his trial only for the crime named in the extradition proceedings,, the case would be different. As it is, the relator being within our-jurisdiction and indicted for a crime, and the authorities of the state, under the constitution and laws of the United States, having an absolute right to his rendition here from any state for trial under the indictment, I am unable to see that any useful purpose would be served by going through the form of returning him to Wisconsin and again having him brought back to this state.

The order should be affirmed.

Herrick, J.

application of the relator to be discharged is founded upon the assumption that inter-state extradition is governed by the same principles as extradition from foreign countries. This, I think, is error. It seems to me entirety unnecessary to call attention to the fact that the relations between the states of the Union and the relation between the United States, or one of the states, and foreign governments, are entirety different. Without discussing or citing the various cases that have arisen and have been reported in the different state courts, and in the United States courts, and among which there is considerable conflict of opinion, it seems to me that a brief discussion or review of the principles which have guided the courts in determining that prisoners extradited from foreign countries cannot be tried for any other than the specific crime for which they were extradited, will show that the same reasons or principles do not apply in a case of a person extradited from one State of the Union to another.

Extradition from foreign countries is based either upon international comity or upon treaty; where no treaty- exists, prisoners have seldom been given up for any except the gravest of offenses, and it has been the rule not to surrender for any offense of a political character; good faith between nations under such circumstances requires that a party should not be tried for any other offense than that which has been brought to the attention of the foreign government, and upon which it has surrendered him.

There being no law governing the matter, the foreign state in each instance passing upon the particular case brought to its attention,' it might very well be that, while it might be willing to extradite in the case that was laid before it, that it might not be willing to extradite in the case for which it was afterwards proposed to bring the prisoner to trial. If such a practice were to be tolerated, persons having an asylum in foreign countries could be brought into another under the pretense of a desire to try for one offense, whereas in truth and in fact it was the intention to try for another or different offense, for which extradition would not be granted, as for instance, political offenses.

Where extradition is founded upon treaty, I think, without exception, the specific crimes for which extradition will be granted are set forth in the treaty, and specifying the particular crimes for which extradition will be granted excludes all other crimes; and the fair inference is that the treaty making powers are not willing to surrender to each other persons to be tried for any other or different crimes except those mentioned in the treaty, and a strict observance of such treaty, and good faith as well', requires that the persons extradited for an offense mentioned in the treaty, should not be tried for any other or different offense.

And it was upon these principles, as I understand it, that the case of the United States v. Eauscher, 119 U. S., 407, was decided. Although decided by a divided court, and upon different grounds, that is now the leading and controlling case in this country upon foreign extradition; coupled with the reasons I have recited, the court in that case also called attention to the fact that the laws of congress of the United States provided that persons brought into this country by extradition must be tried for the offense upon which they were extradited; and Justice Gray in concurring in the decision of the court in that case, concurred upon the single ground that the statutes of the United States provide that persons so surrendered should be tried for no other or different offense .than that upon which they were surrendered (see page 433).

Interstate extradition is founded neither upon comity between states or treaties, but upon the fundamental law of the land. The constitution of the United States, § 2 of article 4 reads as follows:

“A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, upon demand of the executive authority of the state from which he fled, be delivered up to be removed to the state having jurisdiction of the crime.”

It will thus be seen that the principles applying to foreign extradition are not applicable to interstate prisoners; extradition is not confined to specific crimes, but all crimes. No question can arise that the state might be willing to surrender a fugitive for one crime but not for another, as in the case of a foreign country, but the states are commanded to surrender for all crimes; there is no question of bad faith that can arise by reason of extraditing for one crime and trying for another; there is no imposition upon the surrendering state, because the demanding state has a right to demand for any crime.

In the Eauscher case the prisoner was tried for an offense which was not extraditable, the charge upon which he was extradited being abandoned, and the court held that where a person had been extradited for one offense he could not be tried for any other, un. til a reasonable time and opportunity had been given him, after his release or trial upon stich charge, to return to the country from whose asylum he had been taken. Where a person can only be taken for certain specified crimes, that is a reasonable rule and the principle of it easily understood. And in that case there was a statute of the United States requiring that he be protected by the United States authorities for a reasonable time after his discharge from custody on account of the crime for which he was extradited.

But in the case at bar the state of New York can demand of the executive authorities of the state of Wisconsin a surrender of the relator to be tried for the crime of robbery just the same as for the crime of larceny, and it would be a manifest absurdity that a law should be so construed as to require that a defendant should be set at large, or returned to the state of Wisconsin, and a demand forthwith made upon the authorities of that state to return him to this state again, that he may be tried. And there is no statute requiring it as in the Hauscher case.

Order affirmed.

Mayham, P. J., concurs.


author: Math am, P. J.

text:
    Frank H. Pettee, Resp’t, v. Mary H. Pettee, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed June 1, 1892.)

    Divorce—Almost.
    Where the defendant in an action for absolute divorce, while denying the adultery charged, does not deny the facts and circumstances alleged in plaintiff's affidavits which, if true, are inconsistent with defendant’s innocence, the decision of the special term denying alimony and counsel fee will not be disturbed.
    Appeal from order denying alimony and an allowance to the defendant in an action for an absolute divorce.
    The facts appear in the opinion at special term, as follows :
    Kellogg, J.—Temporary alimony pendente lite, counsel fees and money to defray the expenses of litigation to be furnished by the husband, is not one of the absolute rights of the wife in an action for divorce. No matter whether she be plaintiff or defendant, or whether the object be separation or divorce absolute. It is always a question in the discretion of the court whether or not to order the husband to make such provision, and it is to be determined upon principles of justice as the facts in each case are presented. The ecclesiastical courts claimed warrant for the exercise of this power from the fact that the rite of marriage gave to the husband the ownership of the wife’s property ; and since the wife was incapable of owning property during marriage it was only just that the husband should furnish not only maintenance to the wife pending the litigation, but should also furnish the means whereby she could make a reasonable defense .or might properly prosecute her action. But even in these courts the exercise of the power was discretionary, and never went to the extent of directing the husband to furnish money for the wife’s expenses in litigation, or even for maintenance pending the determination of the action, where the wife confessed the charges in the bill, or failed to deny the charges under oath. Though the same urgent reason does not prevail here, still the principle prevails in cases where the wife is shown not to possess or own sufficient means to maintain herself and to make her defense or to prosecute her action.
    In no case, however, will the power be exercised where the petition does not show a denial on the part of the wife of all charges; and where the charge is adultery by the wife, a denial under oath of the adulterous acts charged; or some grounds must be stated or some condition of facts shown which if true will defeat the husband’s action. There must be a presumption of innocence raised on the part of the wife, or facts shown otherwise constituting a defense.
    Of course the merits of the issues raised by the denials of the wife, or the truth of other facts constituting her defense, cannot be determined by affidavits. Courts will not presume to condemn the wife upon affidavits provided, she makes denial of the alleged criminating facts, when- opportunity is given her to do so. It is obvious if she admits the commission of adulterous acts where those are specifically and distinctly alleged, it is as fatal to her request for alimony as would be the confession of the charges in the bill, or the failure to answer at all a complaint charging adultery. It is equally obvious that if she has the opportunity to make denial of specific charges of adulterous acts, or is asked by the court to deny or explain such acts, and she fails to do so, they must be taken as confessed and -treated as admitted, and all the weight natural to such facts must be given them on the wife’s application to the discretionary powers of the court for aid to defend or for temporary alimony.
    The cases holding this principle are too numerous for citation. The principle indeed so commends itself to good sense and to exalted justice that court precedent could hardly make it more authoritative.
    The defendant in this case is charged with adultery with one Larry Owen. It is true that by her answer she denies the charge of adultery, and her answer is verified. In her petition for alimony' she refers to the fact that by her answer she has denied the adulterous acts alleged in the complaint. The affidavits opposing the motion show, among other matters, in substance, that on the night of the 18th of July, 1891, the defendant was discovered in bed with one Larry Owen. That the plaintiff and three or four other persons forced open her bed-room door, and saw the defendant in bed in the arms of Owen. That after some altercation she left the house on the arm of this paramour. The circumstances are given in the affidavits of four of the persons present with considerable detail. .After the reading of these affidavits the court directed that defendant have twenty days time to reply by affidavit denying or explaining these specific criminating facts alleged in these affidavits ' respecting the occurrence on the night of July 18th. At the expiration of the twenty days the defendant presented her affidavit setting forth that she had read the affidavits mentioned, and further alleging “that she did not have sexual intercourse with one Larry Owen, * * * on the 18th day of July, 1891, or at any other time.’’ This is simply a repetition of the allegations or denials contained in her-answer. She does not undertake to deny any of the facts she -was called upon to deny or explain. Ino other words she admits that they are all true as set forth in the affidavits, but she did not after all have “sexual intercourse” with Larry Owen. How these facts can be true and the defendant innocent of adultery is a paradox to the carnal mind. In purely spiritual ethics contacts of this character may be understood to comport with innocence, but the court is human and must be guided in its judgment by human standards applied to human nature. I think the defendant confesses the adultery in confessing herself guilty of the acts detailed in the affidavits, and therefore deny her petition for alimony and counsel fees.

      Waldo & McLaughlin (Chester B. McLaughlin, of counsel), for app’lt; S. II. Bevins (Francis A. Smith, of counsel), for resp’t.
   Math am, P. J.

The complaint in this action on information and belief charges the defendant with various acts of adultery. The answer denies the acts of adultery charged and is duly verified.

The verified petition denies the adultery charged and sets up the financial ability of the plaintiff to pay alimony, and her own absolute irnpecuniousness, neither of which are denied by the plaintiff. The affidavits of the plaintiff used on this motion tend .strongly to prove the adultery charged and detail circumstances which, if true, cannot well be reconciled with the innocence of the -defendant.

The circumstances set forth in these affidavits are not denied, but the defendant in an answering affidavit, filed by permission of the court, retiterates her denial of adultery.

But it is urged by the defendant that the affidavits on the part of the plaintiff prove too much; and that while they tend to establish the guilt of the defendant they also tend to establish conspiracy and connivance on the part of the plaintiff; that the fact that .all the alleged adulterous intercourse was at the house of the plaintiff’s mother, where the defendant visited with the consent of the plaintiff after he had his suspicions aroused by information of the alleged suspicious intimacy between the defendant and the alleged co-respondent, coupled with the fact that all or nearly all of the affiants are near relatives of the plaintiff, are circumstances of suspicion that justifies the court in requiring the payment of alimony and expense money so that the question may be tried upon the oral evidence of witnesses and not upon affidavits alone.

While these suggestions are not without some force, yet the fact remains that the learned judge at special term, after carefully considering all the questions involved, reached a conclusion in the exercise of his judicial discretion, that this was not a proper case for the allowance of alimony, or expenses. ■ The granting or refusing an allowance.of alimony and expenses during pendency of the action of divorce rests in the sound discretion of the court at special term, and the exercise of that discretion will not be interfered with on appeal, unless it has been clearly abused. Section 1769 provides that the court may in its discretion, during the pendency of the action, make and modify an order or orders requiring the husband to pay any sum or sums necessary to enable the wife to carry on or defend the action. It is true that in general if a wife who is sued for a divorce, in her answer either denies her guilt or sets up affirmative defenses, such as forgiveness or recrimination, counsel fee and alimony will be allowed her, unless the court is satisfied that she is altogether in the wrong or has no reasonable ground of defense, Clark v. Clark, 7 Robt., 284; Starkweather v. Starkweather, 29 Hun, 490; but when the special term reaches that conclusion from evidence which may reasonably justify it, the appellate court should not interfere with, the exercise of such discretion.

We cannot see that the discretion was abused in this case and think the order should be affirmed.

Order affirmed, without costs.

Putnam and Herrick, JJ., concur.


author: Mayham, P. J.

text:
    The People ex rel. The A. Filkins Hose Co. et al., App’lts, v. William H. Son, Treas’r, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed June 1, 1892.)

    Municipal corporations—Fire department—Distribution of insurance moneys.
    Relatora and other companies are members of the fire department which was organized by the trustees of the village of Amsterdam in pursuance of its charter, with a membership in steamer companies of 100 men ; hose companies SO, and hook and ladder companies 40, and said board also resolved that the moneys received from foreign insurance companies should be divided between the fire companies in proportion to their respective number of members. The department has been continued under the charter of the city, and the provision as to division of the moneys has not been rescinded by the common council. Held, that the board of trustees under its supervisory power of the fire department had power to regulate the distribution of the fund, and their order not having been revoked or modified by the common council must be regarded as still in force and the money disposed of under its directions.
    Appeal from the final order of the special term, denying relator’s motion for a peremptory mandamus and dismissing the alternative writ of mandamus.

      Edward J. Maxwell, for app’lts; O. S. Nisbet, for resp’t.
   Mayham, P. J.

The contest in this case arises out of a-disagreement as to the proper division and distribution of the funds received by the respondent as treasurer of the fire department of the city of Amsterdam from the agents of insurance companies, under the provisions of chap. 465 of the Laws of 1875, and the various amendments thereto.

The act makes it the duty of every agent doing a fire insurance business within the limits of any city or incorporated village to. annually pay to the treasurer of the fire department of such city or village two dollars on every hundred dollars of premiums received for insurance on property located in such city or village. The defendant, as such treasurer, received the sum in controversy under that law, and the relators insist that they, consisting of the various hose and hook and ladder companies of the city, shall each share that fund equally with all other engine and fire companies in that city.

The statute under which this money is required to be paid to' the treasurer of the fire department, or to the treasurer of the village or city when the fire department has no treasurer, does not indicate or direct how this fund shall be distributed among or bo used by the fire companies constituting the fire department of the cities or villages, to whose treasurer it is required to be paid. We must, therefore, look to the city or village charter, or to the authorized acts of the city government, or the fire department, for some ordinance, resolution, rule or custom for the distribution of this fund.

The answer to the alternative writ denies that all of the relators are members of or constitute a part of the fire department of the city of Amsterdam, and alleges that if the relators which are duly incorporated do constitute a part of the fire department, they are not as companies to share equally in such fund with all the other fire, or engine or steamer companies, and that such fund is not to be divided equally by companies, but per capita in proportion to the maximum number of men in each company, and that by regulation long established and acted upon by the village of Amsterdam, and since its incorporation as a city acquiesced in and adopted by it, the maximum membership of a steamer and hose company was and is 100 men, and of each hose company thirty men, and of each hook and ladder company forty men, and this fund has, by resolution of the department and uniform usage, been distributed to the companies in proportion to their respective number of members. Upon the issue thus framed, the referee to-whom it was referred found as facts that all of the organizations named as relators are members of the fire department; and that the fire department was originally established by the board of trustees of the village of Amsterdam, who fixed by resolution, some time prior to the year 1875, the maximum number of the several companies, t-o consist of 100 men to each steamer and hose-company, thirty men to each hose company, and forty men to each hook and ladder company; and that the fire department of the village became the fire department of the city of Amsterdam on its incorporation.

The referee also found as a fact that the board of trustees of the village of Amsterdam, by resolution, directed that the moneys received from foreign insurance companies be divided among the-several companies composing the fire department pro rata in proportion to the number of members of said companies as fixed by the board of trustees; and that such resolution has never been rescinded by the board of trustees or the common council of the-city of Amsterdam.

The referee also found that prior to the commencement of this action the firemen, at an annual meeting voted to rescind a resolution that had been passed by them in 1888, providing that the insurance moneys be divided pro rata among the several companies in proportion to their number of members.

The referee found upon the facts of this case, that as matter of law the trustees of the village and the common council of the city of Amsterdam had authority to regulate the number of members of the various fire companies' in the village and city, and to apportion and distribute this insurance fund, and that the fire department had no power or authority to apportion this fund among the various companies composing the fire department, and held that the relators were not entitled to a peremptory mandamus, and that the defendant was entitled to judgment dismissing the alternative writ. By the charter of the village of Amsterdam (chapter 889, Laws 1854), the trustees of the village were authorized to organize and establish a fire department

Subdivision 33 of § 3 of title 3 of the charter provides as follows : “ The board of trustees are authorized to' organize and establish a fire department, to be composed of one or more fire, hook and ladder, bucket and hose companies in said village * * and to prescribe the powers and duties of each of said ■companies and of all the members thereof.”

It is -true that by this sub-division the maximum in each company was not to exceed sixty men, and we have not been referred to any statutory authority conferred upon the board of trustees to increase the number in any case to 100.

By chapter 582 of the Laws of 1875, the treasurer of the fire ■department of the village of Amsterdam was made one of the officers of such village, and by § 3 of that act he was authorized to collect and receive all moneys belonging to, or that may grow ■due to that department, and pay the same over to the several ■companies composing said fire department, as they shall be entitled to the same.

As there is no statute definitely defining the method of distribution of this insurance fund, and as the fire department was the creation of the board of trustees, which by the statute above referred to had authority to prescribe the powers and ■duties of each of said companies and all the members thereof, it was but a reasonable exercise of that power to direct the manner in which a subordinate officer of the village should distribute that fund.

As we have seen the referee finds, as a fact, that the board of village- trustees assumed to, and did exercise that power, and by resolution directed the payment of such money to the companies in proportion to their maximum members as fixed by such board, and that method of distribution was for some time followed and acquiesced in by the members of the fire department, and was in operation at the time of the adoption of the ■city charter in 1885.

By -that charter the common council took the place of the village trustees, with the same or increased powers conferred by statute, and it was by § 104 of that charter empowered to establish and maintain an efficient fire department, and make all necessary rules and regulations for the government and discipline of the same, and by § 108 of the charter the fire department of the village of Amsterdam became the fire department of the city.

The common council have never rescinded the resolution of the board of trustees in relation to the distribution of this fund, .and if that resolution was authorized and valid, it is by the express terms of the charter still operative. Section-128 of the charter (chapter 131, Laws of 1885), provides that: “The existing ordinances, by-laws, resolutions and regulations of the trustees of the village of Amsterdam, as the same shall be in force when this act shall take effect, shall be and continue in force, and shall have the same force and effect * * * as if duly adopted by the common council of the city, until the samo shall .have been repealed ¡by the common council of said city.”

If we are right in our construction that the board of village trustees, under its general supervisory power bf the fire department, could regulate the distribution of this fund so long as they acted in harmony with the general scope and purpose for which, this money was given, which manifestly was to improve the efficiency of the various fire departments of the cities and villages of this state, then it follows that the resolution passed by that board must remain operative until the same is repealed, either by them or their successors in authority, the common council of this «city. It has been held that the treasurer of the fire department should under the directions of the trustees of the village or common council of the city pay over all the moneys received or recovered under the first, second and third sections of chapter 465 of the Laws of 1875, to the fire department of the city or incorporated village in which the department is located, Trustees of Exempt Firemen's Fund v. Roome, 29 Hun, 396, and in this case on appeal to the court of appeals that court, in discussing the relation which a fire department in a city or village bears to the municipality, use this language in speaking of firemen and fire companies : “Their duties were public duties; the service they rendered was a public service; their appointment comes from the ■common council * * * they were liable to be removed by the authority which appointed them, and were intrusted with the ■care and management of the apparatus owned by the city. They .are at least a public body, and perhaps are best described as a subordinate governmental agency.”

Tested by these reasons, we see no ground for holding in this ■case that the board of trustees of the village did not possess the ¡lower to make the order they did in relation to the distribution •of these funds; and as that order has not been revoked or modified by the common council, it must be regarded as still in force, .and the money should be disposed o'f by the defendant under its directions.

Having reached this conclusion, it is unnecessary to determine whether or not proceeding by mandamus was the proper remedy for the relators.

The order denying the peremptory writ of mandamus and quashing the alternative writ must be affirmed, with 'fifty dollars ■costs and disbursements.

Putnam and Herrick, JJ., concur.