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

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

views, or from the further proposition that any determination of the question before us which will prove an embarrassment to the cause of ballot reform should be most earnestly deprecated and avoided, if the language of the statutes will permit of another result.

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

The facts, having been agreed upon by the parties, are simple and undisputed. The twenty-fifth senatorial district consists of the counties of Onondaga and Cortland, and contains a voting population of about forty thousand. The canvass of votes showed that Peck, the republican candidate for senator, received in the county of Cortland a plurality of seven hundred and seventy over Nichols, his democratic competitor, and in Onondaga county Nichols received a plurality of three hundred and eighty-eight over Peck, thus showing an apparent plurality for Peck of three hundred and eighty-two votes, the total vote for Nichols in Onondaga county being fifteen thousand seven hundred and fifty-nine, and for Peck fifteen thousand three hundred and eighty-one. Among the ballots thus counted for Peck were one thousand two hundred and fifty-two, which were when voted, indorsed with a number which did not correspond with the number of the district in which they were cast, or with the number which was indorsed upon all other ballots cast in the same district at that election. These obviously illegal indorsements were found only upon republican ballots, and were made upon all of the ballots cast for Peck in the several districts named. These were the first and second of the towns of Clay, Cam. illus and Tully respectively, and the first, second and third of the town of Elbridge, and being as I infer all of the election districts in the several towns named. These facts appeared upon the face of the returns made to the county canvassers, and these votes were allowed to Peck by that board under the only canvass permitted to be made by it pursuant to the express requirement of an order of a Special Term of the Supreme Court. No explanation is furnished by the papers as to how the transposition of ballots occurred nor are any facts stated from which it can be conclusively inferred that it was innocently produced. On the contrary, in my judgment, there is the strongest evidence in the case tending to show that they were designedly transposed. It is plainly inferable from the manner in which votes were required by the statute to be prepared, printed and distributed by the county clerks to the several town clerks that the transpositions occurred in the office of the county clerk. Thus he is required to prepare all ballots intended to be used in his county, to cause them to be printed, and when printed to be placed in separate packages, properly marked for the respective towns and districts in which they are intended to be used, and to transmit them to the respective town clerks as early as the Saturday preceding the day of election, for distribution to the inspectors. The distribution by the town clerk is required to be made of unopened packages, as they are

directed, among the inspectors of the various districts in the town, before the polls open on the morning of the election. It is quite obvious therefore that the respective packages were put up in the county clerk's office, and addressed not only to the respective districts for which they were intended by the county clerk, but all those intended for a particular town were embraced in a single package addressed to the town clerk. These packages were all sent out duly addressed and reached their respective intended destinations. In the several election districts referred to how-towns referred to cannot be the subject of reasonable ever the inspectors of election, upon opening the packages addressed to them on the morning of election, discovered that the republican ballots inclosed in the packages were all indorsed with an erroneous district number, while all other tickets contained in the same

ficient agency could have been adopted to arrest such a movement than the publication of the fact that every person who deserted from his party in such an emergency would be watched and exposed to the various consequences which inevitably follow those who throw off their fealty to party obligations, and incur the hostility of their former political associates. Not only were the voters exposed to these influences, but the fact that their ballots were improperly indorsed exposed them to the approaches of vicious and corrupt partisans, who might, either by bribery or intimida-language that permits of no doubt as to its meaning, tion, seek to influence their conduct. It is evident that if such practices are permitted under the law, the purpose of the act to shield the voter from obnoxious supervision and observation while exercising the right of elective franchise is practically defeated.

is the fact that such interpolation defeats the plainly implied intention of the law-makers, and destroys the sole beneficial purpose of the act. It is among the most familiar rules of construction that the office of interpretation is to carry out the intention of the lawmakers, and facilitate the accomplishment of their object. Any change therefore in the language of a statute which contravenes principles is prohibited by the elementary rules of construction. What was the obvious purpose of this statute? It is expressed in

and is revealed not only by its title, but breathes in every line and word of its forty-six sections. The title declares it to be "An act to promote the independence of voters at public elections, enforce the secrecy of the ballot, and provide for the printing and distribution of We are now brought to the crucial question pre- ballots at public expense." The body of the act shows sented by the situation, which is as to the disposition by manifold provisions that this purpose is to be acto be made by the canvassers, under the law, of the complished only by the inviolability with which the votes thus illegally cast. The language of the act on conscience and intention of the voter is guarded, while this subject is plain and unambiguous, and furnishes a exercising the right of suffrage, from the observation full and conclusive answer to the inquiry, which no and scrutiny of others. It cannot therefore be reason. ingenuity can obscure or evade. The statute says that ably claimed that it was within the purpose of the law. "no inspector of election shall deposit in a ballot-box, makers to permit a voter, whether casting an official or permit any other person to deposit in a ballot-box, or an unofficial ballot, to reveal at the polls in any on election day, any ballot which is not properly in- manner or on any pretense whatever the character of dorsed and numbered, except in the cases provided for the ballot which he proposes to cast. Let us therefore in section twenty-one of this act; nor shall any in- consider the effect of the suggested construction of spector of election deposit in a ballot-box, or permit this statute. It plainly assumes to limit its application any other person to deposit therein, on election day, to unofficial ballots, and thereby to exempt from its any ballot that is torn, or has any other distinguishing operation all official ballots. Ballots, by the law, are mark on the outside thereof." Section 29, chap. 262, designated as "official" and "unofficial," and are exLaws 1890, as amended by Laws 1891. And further, pressly defined by various sections of the act. Those that "no ballot that has not the printed official in- designated "unofficial" are described by section 21 of dorsement shall be counted, except such as are voted the act, and are ballots authorized to be printed by a in accordance with section twenty-one of this act.' town or city clerk only when the ballots required to be Section 31 of the amended act. No claim can be seri- furnished by the county clerk have not been delivered, ously made that the ballots in question were cast in or after their delivery have been lost or destroyed. In accordance with section 21 of the act, and they there- case such ballots are not furnished by the town or city fore necessarily fall under the absolute and unquali- clerk in time, or the supply of ballots becomes exfied prohibition which is directed against the receiv-hausted before the polls are closed, each elector may ing or counting of such ballots, imposed by the quoted furnish his own ballot. These ballots however are reprovisions. The act provides that no ballots not prop-quired to be without indorsement. All other ballots erly indorsed shall be received, or if received, shall be counted. This result must necessarily follow the commission of the prohibited act, whatever may have been the ignorance or intention of the voter or any other person connected with the act of voting, for the canvassing officers are imperatively directed not to receive or count the improperly indorsed ballot. No investigation is required or permitted by the inspector into the motives of the voter, or those who prepared the ballots for him; but without inquiry, upon the mere inspection of the ballot, the inspectors are required to take affirmative action rejecting it, and if for any reason that duty has been omitted at the polls, they are required to refrain thereafter from canvassing or counting such ballots. It cannot of course be successfully contended that under the language of this statute any board of canvassers before whom the facts lawfully come, and vested with the duty of canvassing votes, had any authority in law to count these illegal ballots, and it was therefore practically decided in our deliberations by an unanimous court that, unless some change was made in the language of the statute, these votes must be rejected. Some of the members of the court are of the opinion that the statute may properly be read as though the word "unofficial" had been inserted in the quoted sentences before the word "ballot" wherever it occurs, so that the words of exclusion shall apply to unofficial ballots alone. This interpolation of a word is claimed to be justified by the alleged injustice which would otherwise be inflicted in this case by the disfranchisement of upward of twelve hundred voters. The conclusive answer to this claim

are official. It is apparent then that the ballots in controversy were not in any sense unofficial ballots, and were not attempted to be voted in accordance with the provisions of section 21. It is obvious that the use of unofficial ballots must be exceptional in any case, and was allowed only to guard against an improbable, yet possible, contingency, but was not intended by the law-makers to play an important or even usual part in the conduct of an election. In fact I think that it must be assumed that the occasion has never arisen in this State when the use of an unofficial ballot has been required. If it had, that fact would undoubtedly have become notorious. Is it reasonable therefore to suppose that the Legislature intended its elaborate and carefully-considered scheme of ballot reform to apply to a mere incident of an election, rarely, if ever, liable to occur, and to leave the great evil, which dominated the entire country, and infested every polling place throughout the State, to rage without regulation, restriction or control? It would amount to saying that the leading and most effective provision of the statute, containing its only operative clauses, should be emasculated, and turned into a provision having no practical effect or operation whatever. A most unjust and mischievous construction would be thus given to the law, for it would apparently authorize the improper indorsement of official ballots, and although so marked and distinguished as to reveal their contents, would nevertheless permit them to be counted. law, so construed, leaves the candidate, confessedly elected by illegal ballots, to avail himself of their aid in entrenching his position, so that, if he can ever be

The

dislodged therefrom, it can only be when the lawfully-erly indorsed ballots, and the consequences of a disoelected candidate is in the remote future enabled to prove the agency whereby the illegal transposition of ballots was accomplished, and the secret intent with which it was done. An act leading to such results might, we believe, be more appropriately termed a statute to encourage the violation of the right of elective franchise than one to protect and purify it.

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

bedience of the law, but the offending voter? But it is urged that a strict construction of the law must result in disfranchisement. This is true, but the law plainly contemplates such a result, and who can complain except those who are opposed to any restrictions whatsoever upon the action of an elector? No advocate of the Reform Ballot Law can justly criticise a result which was in the minds of its authors when the law was drafted and enacted. They clearly contemplated this effect, and determined that the injustice which a few might suffer through ignorance, willful blindness or inattention to the requirements of law, should not be permitted to defeat the great good to be secured to the whole people by the adoption of an effectual scheme for the purification of elections. Can it then be seriously contended that voters may knowingly refuse obedience to the conditions imposed by the law, and still claim that their votes shall be counted as lawful ballots? Such a result would trausform the elaborate scheme adopted as a reform measure into an elaborate farce, calculated only to embarrass and hamper the citizen, without adding a line or word to the statute looking to the disqualification of illegal or fraudulent voters or the purification of elecIt was an argument strenuously urged against the adoption of the law that its numerous provisions, complicated, novel and technical as they were, would necessarily result in the disfranchisement of voters, but the advocates of the law contended that these results were the necessary concomitant of any efficient

tions.

intentionally approved the adoption of such restrictions and disqualifications.

It is now too late to discuss the wisdom or policy of the law, and it is certainly not permissible to attempt its reform by judicial legislation. Such a course would not only destroy the effect of the present law, but would render any future legislation, however phrased, subject to the same power of construction, and liable to be' rendered again ineffectual through the force of judicial interpretation.

In accordance with these views, I think the orders appealed from should be affirmed, and the illegal ballots excluded from the computation of votes cast for senator.

A few words more upon a point to which I have already adverted-the claim that a literal construction of this act would result in the disfranchisement of many voters. Those voters are termed innocent, wellmeaning and apparently unconscious instruments in the proceedings which resulted in placing in the bal-ballot reform law, and the Legislature deliberately and lot-boxes of Onondaga county upward of twelve bundred illegal votes. Why they are thought to be entitled to these descriptive appellations I am unable to understand. The law expressly forbids every voter from revealing to any one in the polling place the name of any candidate for whom he intends to vote, or to show his ballot, after it has been prepared, in such manner as to reveal its contents, and in case of a violation of these provisions, he is deemed guilty of a misdemeanor. Section 35, Laws 1890, amended 1891. Can a voter who deposits a ballot revealing plainly and conspicuously the names of the candidates for whom he intends to vote claim to be innocent of a violation of these requirements? These voters most certainly cannot be said to be ignorant of the provisions of the law under which they are exercising their franchise, for the law itself requires that they shall inform themselves of its requirements respecting the form and character of the indorsements made upon their ballots, and refrain from using such ballots. It is elementary that every citizen is presumed to know the law. This is the settled theory of the law. How then can it be supposed that these voters were either in law or fact unconscious of the character of the ballot they were using? It was known before the polls opened at each of these districts that the republican ballots were improperly indorsed, and this was presumably the sub-cast, and were voted in the usual way, and regularly ject of public discussion around the polls. Yet these voters deliberately determined (for they are not permitted to vote without deliberation) to use them, notwithstanding their non-conformity with the law. The inspectors of election were required under serious penalties to examine the indorsement upon each ballot as it was voted, and to determine as to its conformity with the law, and the voter was also required to see that no mark on his ballot revealed the character of its contents. How then can it be consistently asserted that any ballot was deposited in ignorance, either by the voter or the inspectors, of the fact The voter when that it was improperly indorsed?

preparing his ballot had before him three ballots properly indorsed and one improperly indorsed. Who should be responsible for the selection of the improp

ANDREWS, J. (dissenting). I dissent from the judgment in this case. At the November election there were cast in nine election districts, embraced within the towns of Camillus, Tully, Elbridge and Clay, in the county of Onondaga, twelve hundred and fifty-two official ballots for Rufus T. Peck, the republican candidate for senator in the twenty-fifth senatorial district. It is conceded that these ballots were cast by qualified electors, entitled to vote in the election districts in which they respectively voted; that the ballots were delivered to the electors by the inspectors of election of the election district in which the bailots were

deposited in the box by the inspectors, without challenge or objection. The proofs leave no room for doubt that these ballots were used by the inspectors and the voters in good faith, in ignorance of any imperfection. By the judgment in this case the twelve hundred and fifty-two votes mentioned are declared to be void, and the board of county canvassers are required to reject them in making their returns. The judgment proceeds on the sole ground that the printed indorsement on the ballots did not state the true number of the election district in which they were voted. The exact imperfection will more clearly appear by referring to a single case. The town of Camillus is divided into two election districts. In the first election district one hundred and forty-three ballots were cast for Rufus T. Peck for senator, with the printed in