#### People v. Sullivan *et al.*

*(Court of Oyer and Terminer, Albany County.*

January, 1888.)

Elections and Voters—False Returns—Indictment.

Under Laws N. Y. 1880, c. 56, § 18, (Election Code, § 244,) declaring it an offense for an inspector of election to make or attempt to make a false canvass of the ballots cast at an election, or any false statement of the result of any canvass, an indictment against inspectors of election for attempting to make a false statement of the returns several days after the election, charges an offense, though they made a statement of the returns on the election day, as required by law, and though section 304 of the Election Code provides that, on making lip such return on election day, the board of inspectors shall be dissolved.

Indictment against John B. Sullivan and Arthur Main, inspectors of election of the town of Watervliet, in the county of Albany, for attempting to make false returns. Defendants demur to the indictment.

*Asst. Dist. Atty. Hamilton,*for the People. *John H. Gleason,*for defendants.

Mayham, J.

This indictment charges the defendants with attempting to make, and making, a false statement of the result of the count of the votes cast at the eleventh election district of the town of Watervliet, in the county of Albany, at a general election held therein on November 8,1887, and deliver*244ing it to the supervisors as and for the regular returns of said district, in violation of the provisions of section 18, c. 56, of the Laws of 1880. The indictment also charges that these defendants, with one James-Moffatt, all acting as such inspectors of election, duly proceeded to and did canvass the votes cast in and for said election district at such election for the office of senator, and did duly declare -and announce the result of said canvass so made as aforesaid by them; that on November 14, 1887, these defendants, assuming to act and acting as such inspectors as aforesaid, and being such inspectors as aforesaid, and in disregard of their duties as such inspectors, willfully, feloniously, and intentionally attempted to make and made a statement of the result of the canvas so made,'announced, and declared by them as aforesaid, and which they then and there signed as such inspectors as aforesaid, and which they then and there delivered to one Bichard Scully, who was the supervisor of the town of Watervliet, duly qualified and acting as such, and in which statement so delivered as aforesaid, at the end thereof, was a certificate, duly made and subscribed by the defendants as inspectors as aforesaid, that such statement is correct in all respects, which defendants delivered to said Scully as and in performance of their duties as such inspectors, and was received by said Scully as and in the performance of his duty as supervisor. The indictment also avers that said certificate was so delivered to the said supervisor within 24 hours after it was signed by the defendants, and sets out a copy of the certificate. The indictment then charges that such certificate was not *a*true and correct statement of the result of the canvass as made and declared by the inspectors of election at the time of the canvass of said votes, but was a false statement of the result of said canvass, and the same was intentionally, willfully, and wrongfully attempted to be made, subscribed, and signed and certified by the defendants as and for a false statement of the result. The indictment further charges that the statement and certificate so made by the defendants on November 14th, was, as each of the defendants knew, false, and that it declared that Norton Chase received 231 votes for senator, whereas, as they each well knew, said Chase did not, as the result of said canvass, receive 231 votes, but received 186 votes, and no more, 'and that said statement and certificate so made by the defendants is and was false, as the defendants each well knew, in that it declares as the result of such canvass that Henry Bussell received 237 votes for senator, when in fact, as each of the defendants well knew, said Bussell, as a result of such canvass, received.282 votes.

The above statement contains enough of the substance of the charges and negations in the indictment to present the question raised by the defendants’ demurrer to this indictment. But defendants demur to this indictment on the ground that the whole indictment, read together, does not charge the commission of a crime under the statute under which the same is made. The argument is that, as the canvassers were charged with the duty- of canvassing the votes on November 8th, the day on which the election was held, and as the indictment shows upon its face that the board of canvassers performed that duty on that day, and declared the result, their powers as canvassers were on that day all spent, and that they, as canvassers, on the completion of that duty, became and *were functus officio,*and any acts of them, or either of them, at that time, relating to said canvass or certificates, were but the acts of private citizens, and should not constitute a crime committed as inspectors of election.

The language of the section of the statute under which this indictment is found is as follows: “Every inspector of election or clerk of the poll, who shall intentionally make, or attempt to make, any false canvass of the ballots cast at an election, or shall intentionally make, or attempt to make, any false statement of the result of any canvass, though not signed by a majority of the inspectors of election, shall be guilty,” etc. The learned counsel for the de*245fendants relies chiefly upon the decision of the special term of this court, which was affirmed by the general term, in the case of *People*v. *Canvassers,*20 Abb. N. C. 19. In that case the learned justice who delivered the opinion at the special term, which was affirmed by the general-term on appeal, states the question before him as follows: “The simple question is whether the return of November 14th is to be considered by the board of canvassers in making up their result. ” He then proceeds, in a very clear, logical, and conclusive argument, to demonstrate that, for the purpose of canvassing the votes cast at the election, the powers of the canvassers were spent when they declared the result on the day of the election. That was the only question before him for adjudication, and that was all he assumed to decide. The question discussed in that case was whether the return made under any other circumstances than that provided for statute could be taken and regarded by the board of county canvassers, except the certificates of the count as made by the board of canvassers of an election district at the time of the canvass, under the forms of law, and, as evidence that they cannot be, refers to their statutory duty, after the count is completed, to destroy the ballots. That duty performed, he holds that the office, for the purpose of a canvass, *is functus officio.*But it will be seen by an examination of the statute that, for other purposes than those of the counting the votes and declaring the result, the official functions of those officers continue. Section 301 of the Election Code provides for preparing and signing a certificate of the result of the canvass. Section 302 of the same Code provides for making copies of the certificates. Section 303 provides for the inspectors, or some one of them, filing the poll-list in the town-clerk’s office. Section 304 provides that the remaining ballots not pasted on the returns shall be destroyed. Section 305 provides that the original certificate shall be delivered by the inspectors, or one of their number, within 24 hours after it shall have been subscribed, to the supervisor, or some other officer designated therein. It is true that section 304 provides that after the ballots shall be destroyed the board of inspectors shall be dissolved. But I think it does not follow from that provision that the office of inspector held by the incumbent ceases. The office of inspector of election is an elective office created by statute, and elected at annual town-meetings; and, while they are ministerial officers, and must act strictly within the limits prescribed by statute, I do not think it can be maintained that, because they have no power to make false or fictitious returns, they can claim immunity from punishment for such an act simply because the act was illegal or unauthorized. Suppose one or all of the inspectors, after the canvas, changed the declared result, and substituted, fraudulently, another and different one from the county canvassers’, can it be said that they are not liable under section 18, c. 56, Laws 1880, (section 244 of the Election Code,) simply because the unlawful act was done after they adjourned or dissolved as a board of inspectors? It seems to me not. Again, the board of county canvassers frequently find the returns of inspectors defective, and return them for correction. Suppose on such occasion the inspectors, although days have elapsed since the canvass was made, fraudulently change the canvass or result, could it be said that they were out of office, and therefore not amenable to the provisions of section 244 of the Election Code? I think not. If I am right in my conclusions, then tlie indictment in this case charges a crime under the statute referred to. The demurrer must be overruled, and the defendants must plead, to the indictment upon the merits.