New-York tribune., 1891-12-30
VE. KlalG & 60,
PIANOS,
UuEauALLsD III
Tou,, Touch, Workmanship Durability
LARGE VARIETY
IN NEW ARTISTIC STYLES.
148 FIFTH AVENUE
NEAR GOTH ST.
NEAR GOTH ST.

official ballot with n distinguishing mark upon II, o, OF
an improper Indors ment he s not oose this 10 case
cannot be said that the electors Obliged TO rr use
duty to see to It that so important part Of the the
ballot as the Endorsement was In CONFORMITY Wiz ,c,orS
a" hsa ns snowedgc " or 2a means Of Knowing regard 70
the improper Endorsement and that tney yIo Goid Win liz
Sao,s MH9' such n,"' as the law required we would still be
obgd 70 hold that tG i W. Wond deemed nc hr nereetSaI
thaY that tn, fundamental purpose OF an Important
public statute should be subyertsd ron, -. .,,,,,o,-
ton was made for mandamus to compel canvassers s
10 reassembe and rccanvass votes Gns 10 or he sSe
marks and devices prohibited by statute The court
eS we're ' VSid It has been held upon similar grounds
that ballot printed upon coored paper IN IN yloa, noon
white u paper was void, and that ballot was properly
rejected which did not conform IN ieng,h anu ballot
TO be used Oticr cases could he cited which hold ,
the principle that ballots cast by electors GIf sor cf be
forming Ia the provisions OF statute nenueu U ,ho
purpose Of securing secrecy. and which revealed the the
contents Of the ballot or render IL capaoe Vi '''
sequcnt identification, are v0id
In the course OF his opinion this csae Judge Gray
says:
The argument that the official Endorsement was cor c3r
rect because prepared 3 for a, the eef@e ,Ssvsry 70 d
ercn district does not affect the correctness OF tie
eared by the s'a baSeen the body
OF the paper containing the statement ana tne @rs
apon the sample ballot as to the hiD 0n conn
and that Is e result OF our decision III ' ,o sx
@ hibis the fnd of ballots which the statement certes
to have been deposited to certain number. mus US
pss have aces sSi wS we're ns as to those
for Republican votes, indorsed uniformly wn g'nea M
eiections in nv Judgment is against the letter and
the spirit OF the ballot reform law IL was an eroi ,"
for the correction OF which though the lntervenuon Vi
vision has Adequately been made; laws Of .,. $50 10
snt Of mistake, us we assume it to have been, was
enabled t. occur by the requirement OK our law sas
there h S' Se a. mHy ps Had
been but one ballot required this occurrence would not
have SeTa pGsIS at the result should operate to render
null so many votes and to alter what may nave Deen
S S honere no erea Gown any Of tie provs5s this law
framed against possible corrupt vOte est IN 50 aGS
tho way be left open for more ridicai de9'ruc'io
| A VIGOROUS DISSENT BY JUDGE PECKHAM.
Following Is the substance Of Judge Peckham's dis
scnting opinion in the Of the People ex rel John
A. Nichols, respondent, agt the Onondaga Board OF
County Canyassers, ct al. appellants:
The facts In this case are undlsputed. The ballots
S eseI5. S St sy fha of scton for sr Peck without
the 81 giest objections In any OF the ELECTION as
alleged Is that mistake made in the distribution
Of the Republican official ballots. Tho Endorsement
error in distribution made the ballot worthless and
rendered Il the duty OF the inspectors OF election 70
|
deposited to be counted The ballots were voted. IN
fact, without any objection or challenge In single
ton without protest from any source No one then
supposed they were illegal or HnSclai DnaeSt lepo
voters because sD e empoye. Or messengers OF
public officer m:e mistake hs the one il question bma
It's construction and tends 70 bring the law t,elt
into contempt The Of this So act by the
sary and say it with great ectunreasonable.
The only possible ground for giving any Importance
| to the mistake In the distribution OF ballots which
occurred here is that result OF the mistake every
voter who voted Of these ballots was known.
Cauvassers to throw out votes actually received and
counted by the inspectors without challenge or PRO-
| the figures warrant. This the Board has no right
10 do. 1t should be left for judicial inquiry where
| facts and motive may be dealt with
| THE WILL OF THE PEOPLE DEFEATED.
In closing an elaborate dissenting opinion In the
Nichols Onondaga case, Judge Andrews says:
This decision defeats the will Of the majority ana
snbyers y the particular case the 3udauoh pIinrps
technical harsh and unnecessary construction Of the
law. In pace of protecting the right OF saffraSe 1T
cIdentaI Incident, and builds upon that forfeiture
tie way for frauds lpon the suffrage, widereachins In
their effects. Corrupt officials can with reasonable
siss sless mssle npi % which III it viii be hard to dsprove
Having firm conviction that this judgment Is wrong
/ cannot do otherwise than record my dissent.
| JUDGE GRAY on THE DERBY CASE.
|
picaton OF the People OF the State of New-forl on
the relation OF John r. Derby, respondent, against
Frank Rice ct al, composing the Board OF State Can
| vassers appellants, he says in part:
In this matter on certain afdavs an order was
made by the supreme Court at Special Term direct
ronmandng the State board df CanvasSers to issue
certificate OF election in accordance with the certified
the XVlth Senatorial District OF the state. held on
november g. 1891 filed with the said Board, and TO
4 natin nf fhp M
hereupon. solely disregarding and not considering any
other papers OF any other nalre whatever relating 10
any proofs considering any papers with reference
to the determination OF said election except the said
certified statements made pursuant TO the statute by
the Board O County Canyassers OF the counties CON-
posing the said Senatorial district D., ,o,o.,,,o A.,
right propriety TO order the writ OF mandamus
issue IN This mater We we should & MOTHS not hesitate Ito to
supreme Court at a special term Though the writ is
force OF It's terms and command in effect order
which restrnns board OF State Officers engaged In
the performance Of about TO perform a du!y i'm,
appear that the board Of State officers against whom
the application made had refused Or neglected
to perform any duty imposed ty law, that they
intended TO begin any Illegal act not even 1Gat t tnsy
writ OF mpndamus, which issues in order to compel
ministerial officers to exercise their functions or where
specific duty has been Imposed By law and they re-
fuse 10 perform it, or they do not conform . the
But, passing over tho necessity for the writ upon
proposed to 1t as restraining order or inlunc-
lion, which certainly was It's province In this case,
then it, Issuance ought 10 be subjected to the same
statutory provision which imposes restriction upon
injunctions to res'rain State oricer That Is found
in section of the Code Of Civil Procedure. There
IS not enough in the to overcome the legal pre-
sumption that the state officers would perform their
statutory duties. and until! that should appear per
emptory mandamus would not lie. We think tlnt this
provision Of the Code IS applicable to all cases Whee
The object OF the proceeding Is to restrain state oncer
boards while engaged In the performance OF legal
statutory duty and that it, effect cannot be evaded
by issuing writ OF mandamus by the terms OF which
| the state officers are restrained.
40 Judgment which proceeds upon direct methods OF
reasoning and which guides Itself by the written law
of ts State fail 10 rsa,h the conclusion TINT tho
once OF the Boards Of CanvasserS Is purely minis
! uiial one. They must determine upon such state
! ihcr haV ID arithmetical