The People against Cook, 8 N.Y. 67

Willard, J., delivered the opinion of the court. This action was commenced by the attorney general, in January 1852; under title 13,

chapter 2, § 432 of the code of procedure. The general object of the action was to determine whether the defendant or Benjamin Welch, Jr., was, by the greatest number of votes, elected treasurer of this state, at the general election in 1851. The cause was tried at the Tompkins circuit, in March 1852, when a verdict was found for the plaintiffs under the direction of the court, and the supreme court in the 6th district refused to set it aside on the bill of exceptions taken at the trial, and gave judgment against the defendant with costs, and adjudged that Benjamin Welch, Jr., was entitled to the office.

The defendant appealed from the said judgment to this court. The mode of testing the title of a party to an office, prior to the code was by information in the nature of a quo warranto (2 R. S. 581). Although this partook of the nature of criminal proceedings, by reason of the judgment being in some cases followed by a fine, (2 R. S. 585, § 48) yet it was classed with civil remedies, in the third part of the revised statutes. The 428th

section of the code abolishes the writ of quo warranto and proceedings by information in the nature of quo warranto, and enacts that the remedy theretofore obtainable in those forms, may be obtained by civil actions, under the provisions of that chapter. The present action was brought under those provisions and is therefore a civil action. The decisions of the court below are to be reviewed upon the principles applicable to civil actions, and not by those which prevail in criminal proceedings, when the latter differ from the former.

The parties in fact stand in the same relation of equality to each other as in other civil actions. Each, on being defeated is liable to the other, as well for the ordinary costs of the action, as for an extra allowance. (Code, §§ 308, 309; The People v. Clarke, 11 Barb. 337). This is so, whether the people or Benjamin Welch, Jr., be considered as the real plaintiff. (Ib. § 319.) The issue framed by the pleadings was intended to raise not merely the question which party had obtained the certificate of the state canvassers, about which indeed there was no dispute, but which party, Mr. Welch or Mr.

Cook, was in truth elected to the office in controversy.

The complaint, among other things, alleges “that Benjamin Welch, Jr., of the county of Erie, is rightfully entitled to the said office of treasurer, and the said defendant has no right thereto;” and it further alleges “that at the annual election in 1851, the said Benjamin Welch, Jr., was, by the greatest number of votes given at that election for the office of treasurer of the said state, duly elected to that office.” The deiendent in his answer, after setting out his title to the office under the certificate of the state canvassers, his giving the requisite security and taking the prescribed oath, alleges on “ his information and belief, that at the said general election, the greatest number of votes duly given by the qualified electors who voted for any person for the office of treasurer, was given for the defendant for such treasurer.” The reply impeaches the certificate of the state canvassers for various irregularities, and especially for the omission to canvas in favor of Mr.

Welch the votes of the second election district of Chesterfield, in the county of Essex, and the votes of the ■ second election district of the fourteenth ward of the city of New York, and sundry ballots for Benjamin C. Welch, Jr., and Benjamin Welch, and it avers that the votes so given and intended for the said Benjamin Welch, Jr., and then not canvassed in his favor, from Chesterfield and New York, were enough to elect him by the greatest number of votes to the office in question.

The issues thus framed, as well as the mode pursued by the respective counsel on the trial, .show that the parties intended to litigate, and did in fact litigate the question, whether Benjamin Welch, Jr., received, at the general election in 1851, a greater number of votes for the office of state treasurer, than the defendant. It was not denied that the state canvas afforded prima facie evidence that each of the candidates received the number of votes alio ted to him; and that their certificate was prima facie evidence that the defendant received a majority of the votes.

Like all other prima facie evidence, it was supposed to be open to contradiction. These preliminary remarks, will prepare us to consider the various questions which have been urged on this appeal. As the most important questions arise upon the judged final disposition of the cause at the close of the trial, it is proper to ascertain the precise questions then determined.

On the close of the proof, the counsel for the defendant claimed that it should be submitted to the jury as a question of fact: (1st) Whether there was any fraud as to the manner' of closing the polls, and in canvassing the votes in the second district of the fourteenth ward of the city of New York, and (2d) Whether the votes given for Benjamin G. Welch, Jr., and Benjamin Welch, were intended to be given for Benjamin Welch, Jr. It was conceded that all other questions were questions of law and not of fact.

The judge declined to submit either of these propositions to the jury, holding that there was no evidence to sustain the allegation of fraud, and inasmuch as the evidence adduced to establish the intention of the electors, who voted the ballots having on them the name of Benjamin C. Welch, Jr., and Benjamin Welch, without the addition of junior, was all on one side, and not attempted to be explained or contradicted, and sufficient to establish prima facie the intention of those who voted them to vote for Benjamin Welch, Jr., no question of fact was therefore left for the jury.

The defendant’s counsel excepted to the decision. The whole case was then submitted to the judge without argument, and he decided certain points which will be noticed hereafter, to some of which the defendant’s counsel excepted, and the jury rendered a verdict for the plaintiffs, under the direction of the court, to which direction counsel also excepted. The decision of the learned-judge, on the two points above mentioned, depends upon the same principles, and I shall therefore consider them together.

The fact assumed by him that there was no evidence of fraud in the one case, and in the other, that the intention of the voters was prima facie established, was not denied by the counsel for the defendant. It was not pretended that the defendant had given any evidence contradicting that on the part of the plaintiff.

Nor did the counsel point out any distinct fact as evidence of fraud in the New York case. (As to the effect of a fact assumed by the court and not denied, see 19 Wend. 444.) The objection therefore comes down to a mere question of form, whether the judge is bound to submit to the jury as an open question, to find fraud without evidence in the one case, or in the other to find against a fact prima facie established, and which the other party has not attempted to controvert or explain: or whether he may direct a verdict in conformity to such evidence.

This presents a point of practice at nisi prius, which must be settled according to the usage in this state. This subject may be presented in three aspects: (1st) as to the practice on a demurrer to evidence: (2d) on failure of proof on the. part of the plaintiff, and (3d) on a failure of proof on the part of the defendant. (1.) On a demurrer to evidence the party demurring must admit' every fact which the jury might find from the testimony.

The decision of the cause is thus wholly withdrawn from the- jury to the court, and the former have nothing further to do than, in a proper case, to assess contingent damages. (Gibson v. Hunter, 2 H. Bl. 187; 1 Douglass 133, 134, per Buller, J.; 3 J. C. 10, 159; 2 C. R. 133, 134; 1 J. R. 241; Lewis v. Few, 5 J. R. 1; The People v.

Roe, 1 Hill 470.) In the present case there was no demurrer to evidence, for the cause was in truth passed upon by the jury who gave a verdict for the plaintiff. (2.) On a failure of proof on the part of the plaintff, it is well settled in this state, and has been for half a century, that the plaintiff may be compelled to be nonsuited, against his consent. (Clements v. Benjamin, 12 J. 299; Pratt v.

Hull, 13 id. 334.) And it is laid down as a general rule that if the evidence would not authorize the jury to find a verdict for the plaintiff, or if the court would set it aside if so found, as contrary to evidence, in such case it is the duty of the court to nonsuit. (Stuart v. Simpson, 1 Wend. 376; Demyer v. Souzer, 6 id. 436-7-8; Wilson v. Williams, 14 id. 146; Fort v. Collins, 21 id. 109; Jansen v. Acker, 23 id. 480; Rudd v. Davis, 3 Hill, 287; McMartin v. Taylor, 2 Barb. S. C. R. 356, 361.) This rule was sanctioned by the unanimous opinion of the court of errors, in Rudd v. Davis, 7 Hill, 529.

The English practice on this subject is different, as they never nonsuit the plaintiff against his consent. (2 T. R. 280; 1 Barn, and Ald. 252.) Hence with them one of several defendants is never discharged, if there is the slightest evidence against him.

There are dicta to the same effect, by judges in this state, when their attention has not been called to the difference between our practice and that of the English courts. (See 4 Comstock's R. 548 per Mullett, J.) The true rule is that a defendant sued in tort with others is entitled to be discharged, if the evidence against him be such that if he was sued alone he would be entitled to a nonsuit. (McMartin v. Taylor, 2 Barb. S. C. R. 356.) The power to nonsuit results from the principle that the court is the judge of the law when there is no dispute about facts. (Pratt v.Hull, 13 J.

R. 334, approved by Mullet, J„ in Labar v. Koplin, 4 Comstock ,548.) The practice in relation to nonsuits, or, in present phraseology, dismissing the complaint, is, that it may be granted at the close of the evidence on both sides, or at any other time when the plaintiff' admits he has no further evidence. (3.) On a failure of proof on the part of the defendant. ■ At the close of the cause, if a- prima facie case be established on the part of the plaintiff, and it is undisputed by the defendant, it has been always usual to direct a verdict for the plaintiff. (See Nichols v. Goldsmith, 7 Wend. 160; Crawford v.

Wilson, 4 Barb. 504, 518; Rich v. Rich, 16 Wend. 676.) This rests upon the same principle as the power to nonsuit, that the court is the judge of the law when there is no dispute about facts. Verdicts to an immense amount are daily taken under the direction of the presiding judge in cases where the defence has wholly failed. The jury assent to the direction by giving their verdict. The fact thus found is as conclusive upon the parties as if it had been the result of a long deliberation. Nor is there any thing in this practice that impairs the rights of the jurors, or the efficiency of trial by jury.

It does not conflict with the maxim: ad questionem fact', non respondent judices; ad questionem legis, non respondent juratores. (Co. Lit. 295, b.) To bring a case in hostility to the maxim, it must be shown that a controverted question of fact was decided by the judge, without the intervention of the jury. Here was no fact in dispute, and the jury actually gave a verdict. In the case of The People v. Croswell, (3 J. Cases 337,) the rights of jurors were most elaborately discussed.

In his 13th proposition, (id. 362,) General Hamilton remarks, “ That in the general distribution of powers in any system of jurisprudence, the cognizance of law belongs' to the court, of fact to the jury. That as often as they are not blended, the power of the court is absolute and exclusive.

That in civil cases it is always so, and may be rightfully so exerted;” and it was expressly asserted by Kent, J., in delivering his opinion in the same case. (Id. 376.) “ The opinion of the judges in criminal cases,” he observes, “ will generally receive its due weight and effect, and in civil cases it can and always ought to be ultimately en-. forced by the power of setting aside the verdict.” These principles were quoted with approbation by the supreme court in Snyder v. Andrews, (6 Barb. 48,) and have been approved in many other cases. The judge, did not in the present case decide the question of fact.

He withdrew nothing from the jury. His decision amounted only to a charge to find those issues for the plaintiff. The jury might have refused to do so, or have found the other way without being liable to punishment. The only remedy for such a verdict would have been to set it aside. But the jury acquiesced in the direction, and found for the plaintiff. The cases which show that it is not competent for the court to direct a verdict for the plaintiff, subject to the opinion of the court, against the consent of the parties, are not applicable to the question we are considering. (Ely v. Adams, 19, J. Pe. 313; Hyde v.

Stone, 9 Cowen, 230.) The principle decided in Nichols v. Goldsmith, (7 Wend. 163,) and Rudd v. Davis, (3 Hill, 287,) affirmed in error, (7 Hill, 529;) Crawford v. Wilson, and Rich v. Rich, supra, sustain the ruling of the court below. If the refusal of the learned judge to submit the foregoing questions to the jury, be deemed a refusal to permit the defendant’s counsel to address the jury thereupon, it was not the subject of an exception. Whether counsel shall be permitted to address the jury, is a matter resting in the sound discretion , of the court. This has always been so treated.

Under the former constitution there was a time when all causes originating in justices’ courts were required to be submitted in the supreme court without an oral argument. The courts in this state have for a long time limited the number of counsel to address the jury, when a cause was to be summed up, and to examine and cross-examine witnesses.

The convention of judges held in August last, under §470 of the code of 1852, embracing the judges of the supreme court, superior court of New York, and court of common pleas of that city and county, by a general rule, restricted the number' of counsel to be heard on each side at general and special terms to one, and the time beyond which they should not be heard, except when otherwise ordered, to two hours each. (See Rule, 13 and 14.) A similar rule exists in the supreme court of the United States, and this court limits the number to be heard on a side.

All these restrictions imply that the right to address the jury or the court, is not an absolute, unqualified right, to be exercised ■ by as many counsel as may be employed. The courts on the same principle limit the number of witnesses to.be examined on a side, in all collateral issues; (Nolton v. Moses, 3 Barbour, S. C. R. 36; Spear v. Myers, 6 id. 445;) and doubtless may do so on the main issue. On the same . principle, too, it rests in the discretion of the court whether a witness once examined, may be recalled and examined further on the same or other subjects. (Law v.

Merrills, 6 Wend. 276, per Walworth,, Ch.; The People v. Mather, 4 Wend. 246; C. & H., notes 711, 788; Dunckle v. Kocker, 11 Barbour, 387.) If the judge at the trial errs in the exercise of this discretion, the remedy is by motion for a new trial on a case.

It is well settled that a bill of exceptions can not be taken to review the exer- » cise of discretionary power. (C. & H. notes 711, 788, where many of the cases are collected.) In this aspect of the case then, an appeal will not lie for the refusal of the judge to permit the counsel to address the jury on the questions now under discussion, there being no question of damages to.be passed upon. In point of form,, therefore, on the facts assumed by the learned judge, there was no error in directing a verdict for the plaintiff, instead of submitting the matter as an open question to the jury.

The manner of stating the question on the record, is not according to the usual practice, but it is nevertheless intelligible. I have hitherto treated the case as if the facts in relation to those points were all on one side, as stated by the judge. If so there was no fact in dispute. Whether the judge was right in that assumption or not, could more properly be reviewed in the court below on a case containing the whole evidence. The exception does not point to the fact that the judge was wrong in his assumption of what was established by the evidence, but to the legal conclusion which he deduced from it.

The learned judges in the court below, have moreover discussed these questions of fact in an able and elaborate manner, and shown to my satisfaction, that the judge at the trial was right in his assumption. It would be a waste of time to travel over the same ground. It is well settled also, that when on the trial of a cause, a fact is assumed by the court and counsel to exist, and the case is disposed of at the trial upon such assumption, the nonexistence of the fact in the case presented to the court on a motion for a new trial, can not be urged in opposition to the application for a new trial. (Beekman v.

Bond, 19 Wend. 444.) This must be so likewise on a bill of exceptions, when the nonexistence of the fact is not made a point in the court below. The range of the discussion, however, on this appeal, has made it necessary, or at least expedient, that a few words should be added on this branch of the subject; and (1st) Of the question of fraud in the New York case. Fraud can never, in judicial proceedings, be predicated of a mere emotion of the mind, disconnected from

an act occasioning an injury to some one. A fraudulent transaction implies a wrong done, as well as a person wronged. The term fraud when applied to inspectors of an election, implies, ex vi termini, that some legal voter has been designedly and wrongfully deprived of his vote, or that an illegal vote has been purposely and unjustly received by those officers, or that a false estimate has been imposed upon the public as a genuine canvas.

In the present case, however, the judge was asked to submit to the jury to find fraud in the inspectors of the 2d district of the 14th ward in the city of New York, from certain actual or supposed irregularities, in a case where it appears from the record, that it was not shown or alleged on the trial that any illegal votes were received, or legal votes rejected, and in the face of the testimony of all the inspectors, embracing both political parties, and which was not contradicted, that the votes of the district were fairly and honestly received, and accurately canvassed and returned.

With respect to that return the defendant is the assailant and holds the affirmative. It will be shown in another connection that it should have been received by the county canvassers. The legal presumption is in its favor. It is no answer to this, that the irregularities of the inspectors have rendered it impossible to detect the fraud. The decision of the learned judge with respect to these irregularities belongs to another execption. • We are now upon the exception to this decision, refusing to submit to the jury, to find fraud without evidence in closing the polls and canvassing the votes in that district.

This is quite a different matter from the question of irregularity, and must be kept distinct from it. The judge did not err in refusing the motion of the defendant’s counsel in this respect. (2d) On the refused to submit to the jury whether the votes for Benjamin C. Welch, Jr., and Benjamin Welch were intended for Benjamin Welch, Jr. What that decision in reality was, and the grounds of it, have already been shown-A few words more will be added. The court did not treat the question of the intention of the voters who deposited the defective ballots as a question of law.

It was treated throughout as a question of fact, to be established by the evidence. The ground taken by the judge was, that the in- ' tention of the voters to vote for Benjamin Welch, Jr., was prima facie established, and not attempted to be explained or contradicted, and there was therefore no question of fact for the jury. His decision was a mere direction or charge to the jury, to find for the plaintiff' with respect to those matters, and they found accordingly. The evidence was not withdrawn from them, but in truth passed upon by them.

It was not indeed submitted as an open, controverted question, or summed up by counsel. But when that intention of the voter was placed beyond dispute, as it was in this case, by the evidence, it became a pure and unmixed question of law, whether those defective ballots should, on this trial, be allowed to Benjamin Welch, Jr., or not. The result was the same as if the judge had charged the jury that if they, believed that "the voters intended by the defective ballots to vote for Benjamin Welch, Jr., of which there was no do.ubt, those votes in point of law should be estimated by them to Mr. Welch.

It was unnecessary to decide that those defective ballots should have been allowed and canvassed to Benjamin Welch, Jr., by the state eanvass.ers. The court did not say as matter of law, irrespective of the extrinsic facts proved, that Benjamin C. Welch, Jr., and Benjamin Welch, without • the junior, meant Benjamin Welch, Jr. It was the extrinsic evidence that made the intention of the voters obvious. In my own opinion the state canvassers act ministerially in the main in making their certificate.

They can not be charged with error in refusing to add to the votes for Benjamin Welch Jr., those which were given for Benjamin C. Welch, Jr., and for Benjamin-Welch, without the junior. They had not the means which the court possessed on the trial of this issue of ascertaining by evidence aliunde, the several county returns, the intention of the voters and the identity of the candidate, with the name on the defective ballots.

Their judicial power extends no further than to take notice of such matters of public notoriety, as that certain well known abbreviations are generally used to designate particular names, and the like. It is enough probably to say, that the legislature has not clothed, either the state officers or the subordinate boards of inspection with power to hear and determine, by the means of evidence aliunde the return, the intention of the voters. The strictness with which these boards should be held to the record before them, is dictated by sound policy and enlightened wisdom.

Who could desire to see the close of every canvas followed up by a rush of heated partizans to disprove by their testimony the estimate made by the proper authority? • But the question whether the state canvassers ought to have allowed to Mr. Welch the defective■ ballots, is not necessarily involved in this case, if this court shall be of opinion, that on the trial of this cause, it was competent to go behind both the certificate and ballot box, to ascertain the voters’ intention in depositing the ballots in controversy.

It has been strenuously insisted by the counsel for the appellant that the court does not possess this power. He insists that the court can go no further in this action than to correct mistakes of the returning officers and to prove facts, which show the return to be false, and to make it such as it ought to have been made by the canvassers. Such errors, whether intentional or otherwise, no doubt can be corrected by this action, and many of the cases referred to on the argument did not require a more searching remedy.

This question is. of sufficient importance to be viewed upon principle and authority. (1.) Upon principle. It is by the popular expression by the voters through the ballot box that a title is derived to an elective officer. The certificate of the board of canvassers is mere evidence of the person to whom a majority of the votes were given. The certificate may indeed be conclusive in a controversy arising collaterally, or between the party holding it and a stranger.

But when this pro ceeding is instituted in the name of the people it loses its conclusive character and becomes only prima facie evidence of the right. The pleadings in this case, it has already been shown, were so framed as distinctly to present the question, whether the ballots now in controversy were intended by the voters for Benjamin Welch, Jr. If the issue thus tendered by the plaintiff was irrelevant, the defendant should have moved to strike it out. By taking issue upon it and going down to trial, and litigating the facts involved in it, he concedes its materiality.

This concession, it is true, is not conclusive upon the court; but 1 think it was the intention of the code, and certainly it was of the pleaders on both sides, that the issue should involve an inquiry into the right to the office as derived from the highest source of popular sovereignty, and not merely the right derived from the certificate. It will be seen that the pleadings in this case are essentially different from the precedents under the former practice in analogous proceedings: (see the forms in The People v. Van Slyke, 4 Cowen, 297.) (2d.) Upon authority. In the case of the People v.

Ferguson, (8 Cowen, 102,) decided in 1827, a new trial was granted by the supreme court to enable the relator to prove on the trial of the issue, that votes given for H. F. Yates were intended by the voters for Henry F. Yates. That was an information in the nature of a quo warranto to determine whether Ferguson or Yates was elected clerk of Montgomery county. If on that trial 14 ballots on which were written H. F. Yates were allowed to Henry F. Yates, he would be entitled to the office, instead of Ferguson, to whom the certificate was given by the county canvassers.

That case is exactly in point, and goes further, indeed, than is necessary in the one under consideration. The late chief justice Savage, in the course of his opinion in that case, says, you may look' beyond the ballot boxes for testimony as to the intention of the voter, and that the question of intention is fairly for the jury. This doctrine was approved by the same court in The People v. Seaman, (5 Denio, 409,) decided in 1848, in a similar proceeding, to test the title of the parties to the office of supervisor. In the earlier case of The People v.

Van Slyck, (4 Cowen, 297,) an information in the nature of a quo warranto was brought to oust the defendant from the office of sheriff. It was insisted by the defendants’ counsel that the decision of the canvassers was conclusive and could not be reviewed but by certiorari; and that the certificate of the canvassers could not be impeached in this way; but the court held that the certificate was not conclusive; and on a special verdict, finding that the vote of one town had been improperly rejected by the county board, which, if received, would have altered the result, they ousted the defendent.

This case shows that the court may go behind the certificate. It shows, also, that it is the election, and not the certificate of the canvassers that gives the right to an office. In The People v. Vail, (20 Wend. 12,) the case of The People v.

Ferguson is expressly recognized as sound law; and Bronson, J., says that in those legislative bodies which have the power to judge of their own members, it is the settled practice when the right of the sitting member is called in question, to look beyond the certificate of the returning officers; “ and I think,” he observes, “ a court and jury, with better means of arriving at truth, may pursue the same course.” We are not called upon to say that every possible question, arising under the election law, may be corrected in this way. It is enough that the principle contained in The People v.

Ferguson sustains the ruling of the court below. That case has stood the scrutiny of more than a quarter of a century; and has neither been disturbed b.y the new constitution, nor the repeated revision of the election law. I see nothing in the present case that requires us to depart from it. Nor is there any danger to be apprehended to the security of our institutions by pursuing- this practice. The-right to an office is no higher than a right to life, liberty, or property. There is no principle that should withdraw the first from the cognizance of a court and jury, to the exclusion of the last.

Both will, indeed, be safe under the administration of the ordinary tribunals. ft now remains to notice the other questions of law, which are presénted by the record. (1.) The learned judge decided in his direction to the jury, that the votes given in the western district of the 1st ward of the city of Buffalo, were properly canvassed and allowed to Mr.

Welch, notwithstanding the inspectors took the oath of office upon a book called “ Watts’ Psalms and Hymns,” and not upon the gospels; notwithstanding these challenged voters and two of the clerks were sworn upon the same book, it being beyond dispute that in each case, the affiants supposed the book to be a testament or bible, and were ignorant of the fact that it was otherwise. To this the defendant’s counsel excepted. This exception is not wnll taken for two reasons: (1st.) The neglect of the inspectors or clerks to take any oath, would not have vitiated the election.

It might have subjected those officers to an indictment, if the neglect rvas willful. (L. of 1842, p. 132, § 19, and 2 R. S. 696, § 38; In the matter of the election of the Directors of the Mohawk and Hudson R.R. 19 Wend. 135; Greenleaf v. Low, 4 Denio, 168; Weeks v. Ellis, 2 Barb. S. C. R. 320.) These and numerous other cases show that the acts of public officers being in by color of an election or appointment, are valid, so far as the public is concerned. (2.) The oath in this case, though irregularly administered, was a valid oath.

If the party, taking it makes no objection to the mode of administering it at the time, he is deemed to have assented to the particular form adopted, and is liable to all the consequences of perjury, as if it had been administered in strict conformity to the statute. (C. and H. notes 705; id. 1503; Cody v. Norton, 14 Pick. 236; Commonwealth v. Buzzell, 16 id. 153.) The challenged voters are as amenable to an indictment for perjury as if they had been sworn on the gospels.

The learned judge therefore committed no error, in holding that the votes in Buffalo above mentioned, were properly canvassed and allowed to Mr. Welch. (II.) The ballots for Benjamin Welch, Jr., in the several election districts in Herkimer county, in which the specimen ballot headed “ State” had at the bottom “ For County Judge, Ezra Graves,” were properly canvassed and allowed to Mr. Welch. Whatever effect this might have upon the ballot for county judge, it had none upon other candidates upon the state ticket.

The statute forbids inserting on the same ballot more than one name for the same office. (L. of 1842, p. 118, § 8.) The judge did not err, therefore, in holding that the Herkimer votes were rightfully allowed to Mr. Welch. (III.) There was no good reason for rejecting the votes in the second, election district of the town of Chesterfield. There was sufficient proof that the gentlemen acting as inspectors were such de jure; and if not, it will be shown under another head that they were at least so defacto, and that that was sufficient-to support their acts.

The county canvassers of the county of Essex had no right to reject the certificate'of the board of inspectors. It was regular on its face, and presented to them in time.

The statute has nowhere, invested them with the power which they assumed to exercise. (L. of 1842, pp. 124, 125.) The 15th section, which authorizes the county board to depute one of their number to return the certificate of the district inspectors to those officers, to supply omissions and correct clerical mistakes, if any exist, and to adjourn in the mean time to allow the corrections to be made, is all the correcting of revising power which the county board has over the district board.

The corrections in thft case are to be made by the latter board, and they are not permitted to alter any decision before made by them. The learned judge was right, therefore, in holding that those votes should be allowed notwithstanding they had been rejected by the county canvassers, and were not included in the estimate of the state canvassers. (IV.) The votes given in the second election district of the town of Williamsburgh, were canvassed by the county and state canvassers, to Benjamin Welch, junior. ■ The defendant, in seeking to reject them, holds the affirmative.

He takes upon himself the business of showing, either that the number of votes have been untruly canvassed, or that some other facts exist which invalidate the certificate. (1st.) From the record it appears that no illegal votes were received in said district at said election, and no legal votes were offered and rejected; that all the votes given at said-election were honestly canvassed to the respective candidates, and a true and faithful return of said votes were made by the inspectors. There was no dispute about these facts, and the evidence was received without objection.

The defendant therefore failed to show that he sustained any .injury by any act of the inspectors, or that their certificate did not truly state the result of the popular will at that poll. (2d.) The defendant failing to show the return false, seeks to reject it altogether, on account of t'he noncompliance by the inspectors with some of the provisions of the election laws.

There are various duties enjoined by law on the inspectors, the great objects of which are: (1.) To afford to every citizen having a constitutional right to vote, an opportunity to exercise that right. (2.) To prevent every one deprived of that right from voting. And (3.) To conduct the election in such a manner in point ofform, that the true number of legal votes can be ascertained with certainty.

If all these objects be accomplished, as they seem to have been in this case, to reject the whole votes because the inspectors failed to comply with every prescribed regulation, would be, as was well remarked by one of the judges in the court below, to place a higher value on the statute regulation, than on the right itself. It would be a sacrifice of substance to form. It is proper, however, to examine these objections, and to see whether the irregularities complained of have rendered the state of the poll in that district, so doubtful and Uncertain that no reliance can be placed upon it.

The first objection I shall consider, relates to the inspectors of the election. It appears by the record that the inspectors who opened the polls in the morning were not regularly sworn, and that they were appointed by the supervisors, town clerk and a single justice, “ Inspectors of the election for the second district of the town of Williamsburgh, to act until others are appointed.” It was dated November 4th, 1851. It appears that there were inspectors elected for that district, but they were not present at the opening of the polls.

There can be no doubt that this appointment was a colorable authority for those inspectors, and that their acts in that capacity were valid, so far as third persons are concerned. Their omission to take the oath in due form did not invalidate their acts. The defendant’s counsel does not deny that these inspectors were officers defacto ; but he insists that their appointment made them inspectors for the entire election, and thus vacated the office of the elected inspectors. And if so, the latter could not act at all, and were not even inspectors de facto.

I think this result would follow if the inspctors in question had been legally appointed under the 22d

section of • the act. (L. of 1842, p. 117.) But there was a defect in their appointment. The statute contemplates that at least two of the justices should sign it, without which in the ' country towns, there would not be a majority of the appointing power. In the absence of proof to the contrary we must intend that there were the 'usual number of justices in the town. There not being the requisite number of officers concurring in the appointment, it was defective There was still another defect. The statute contemplates that tire inspectors should be appointed to supply the vacancy of those absent.

Although it is silent as to the duration of their offices, yet it is obviously for that election. In this case they were appointed to act until others were appointed.'''' The town officers supposed that they had the right of ■ making an appointment during their pleasure. I think they had no such power. The appointment merely gave them a colorable authority, and did not displace the elected inspectors. The latter, on appearing at the polls, had a right as inspectors de jure to take the charge of the election and to make the return.

The statute requires that the inspectors, after taking the oath, shall appoint two clerks, who shall take the constitutional oath. (Laws of 1842, p., 118, §§ 3 and 4.) This is directory. If no clerks can be procured the election is not to fail. The inspectors must perform the duty which ordinarily is devolved upon the clerks. The failure of the clerks to .take the oath did not render their acts void.

The occasional interference of more inspectors than three does not prejudicethe return, since the whole election was conducted by inspectors who were at least such de facto, and for the most of the time by those who were such de jure.

It is not to be disguised that there were irregularities in this district for which the.inspectors were censurable, and perhaps liable to be punished by indictment.- Had the de-; fendant’s counsel contended on the trial that these irregularities rendered the state of the canvas uncertain, he should have asked to go to the jury with the question whether the votes were accurately canvassed or not.

By omitting to do so, and by conceding that the questions were questions of law, and not of fact, and allowing it to be proved without objection that the votes were accurately canvassed, nothing was left but the abstract question whether an omission to comply with the statutory require ments in question, per se invalidated the votes of that district. If these requirements be directory and not jurisdictional, the learned judge was right in deciding that the votes were properly allowed.

The cases on the subject of what provisions in the statute relative to the elections are directory and what are jurisdictional or imperative, are elaborately collected and examined by the learned judges in the court below, and I do not deem it necessary to review them at large. I will merely refer to some of them. (Doughty v. Hope, 3 Denio, 251; Elmendorf v. The Mayor of N. Y. 25 Wend. 696; Merchant v. Langworthy, 6 Hill, 646; ex parte Heath, 3 Hill, 43; Jackson v. Young, 5 Cowen, 269; Stryker v. Kelly, 7 Hill, 9; People v.

Peck, 11 Wend. 604; 19 Wend. 143; and see Smith on Statutes, 782, 799, where the cases are reviewed.) Upon the analogy of these and other cases the requirements of the statutes which were not complied with, are clearly directory. An officer de facto is one who comes into office by color of a legal appointment or election. His acts in that capacity are as valid, so far as the public is concerned, as the acts of an officer de jure. His title can not be inquired into collaterally. The doctrine on this subject will be found in the following cases:—The People v. Bartlett, 6 Wendell, 422; same v.

White, 24 id. 525, 539, 564; same v. Covert, 1 Hill 674; same v. Stevens, 5 Hill, 616; same v. Hopson, 1 Denio, 575; Weeks v. Ellis, 2 Barb. S. C. R. 324; 3 Barn. and Ald. 266, 270.) Third persons can justify under officers defacto, (Weeks v. Ellis, 2 Barb. S. C. R. 320; 3 Barn, and Ald., 266; Wilcox v. Smith, 5 Wendell, 231.) Had the sheriff or constable arrested a disorderly person, under authority from either of the boards of inspectors, who were merely such de facto, he would have been protected.

The person of the voter is as securely guarded under the authority of inspectors de facto, as of inspectors de jure. A challenged voter swearing falsely before a defacto board of inspectors, is as much liable to punishment under the statute as if the oath had been ad ministered by inspectors de jure. (L. of 1842, p. 134, § 1; 2 R. S. 681, § 1; State v. Hascall, 6 N. H. Reps. 352; 2 C. and H. 1101; Van Steenbergh v. Kortz, 10 J. R. 167; Howard v.

Sexton, 1 Denio, 440.) In the latter case, Bronson, J., says, “if parties should go to trial before a judge or justice of the peace who had not taken the oath of office, I think a witness who should swear false on such trihl could not escape the pain of perjury.” And it is laid down by Hawkins, (P. C., book I. ch. 69, § 4,) that a false oath taken before commissioners, wdiose commission at the time is in strict7 ness determined by the demise of the king, is perjury, if taken before such time as the commissioners had notice of such demise.” (Bac. Ab. Tit. Perjury, (A).

Such officers after the demise of the king and before notice, are merely officers de facto. The learned judge did not decide that inspectors’might lawfully omit at their pleasure any of the requirements of the statute. He merely held that the votes received in the said district, under the circumstances disclosed, were not to be rejected on the trial of this issue, but should be allowed to the respective candidates.

The counsel for the defendant contends that the failure of the inspectors to comply with any of the various provisions of the statute, is analogous to an erroneous decision of a judge at nisi prius, in receiving or rejecting evidence improperly. But the cases are in no respect parallel. The error of the judge in the latter case has a direct tendency to injure the party against vhom the decision is made. The error of the inspectors in the former case has - no tendency to injure one candidate more than the other. Indeed it has no necessary tendency to injure any body.

It is the error, moreover, of the inspectors, and not of the court. V. The learned judge did not err in his direction to the jury, that the votes in the second district of the 14th ward of the city of New York, were improperly rejected by the county canvassers. It has already been remarked, in considering the Chesterfield case, that the county board had no right to reject a certificate of the district inspectors, which is fair on its face, and delivered to the proper officer within the time allowed by law. The county board should have received and returned these votes to the state canvassers.

This point, however, is not of much importance in this stage of the cause, since either party had a right to go behind the certificate and show it to be false. Had the county board of New York conducted the canvas legally, the burthen of proof would have been shifted from the plaintiff to the defendant.

There are but two points in this part of the case which have not already been disposed of, against the defendant, under some one or more of the preceding heads: (1st.) Closing the outer door at sundown and preventing any person from entering the room where the poll of the election was held; and (2d.) Receiving the votes of those already in the room at the time the outer door was closed, ten or fifteen in all.

In considering these points it must be borne in mind that it is not enough for the defendant to show that the poll was kept open after sundown, or that the door was shut before that hour; such a technical deviation from the direction of the statute, can not avail him unless he can also show that the hour of opening and closing the poll is of the essence of an election. He did hot propose to show that any legal voters were excluded by the act of closing the outer door, or illegal ones received after sundown.

He conceded that the questions arising upon those facts were questions of law for the court, and the learned judge made his decision with the fact distinctly appearing, that no legal votes were rejected or illegal ones received. It must be borne in mind, further, under this branch of the subject, that the constitution is imperative with respect to the day on which' our annual elections shall be held. (Constitution,

Article 3, § 9.) Should the legislature direct it to be held on a different day, as they are empowered by that instrument to do, such day would be imperative also The constitution is silent with respect to the hour of the day at which the poll shall be opened and closed. The regulation of that matter is thus left to the legislature, and, when they do not interfere, to the common law.

The statute requires that the poll shall be open in the cities at sunrise, and shall be kept open till the setting of the sun. (Laws of 1842, p. 118, § 6.) (1st.) No elector had any right to complain if the door was shut and the poll closed at sundown. He was not deprived of any right. The act of closing the outer door at that time can not be urged as prejudicial, unless it is shown that some one was prevented from voting. (2d.) The receiving the votes of electors already in the room, has not been shown to be an error prejudicial to the defendants. Whether these votes were for him or against him does not appear.

If they were all against him and were now rejected, it would not alter the result. If they were in his favor he has no right to complain. (19 Wendell, 635,638.) The statute contains no words forbidding the poll to be held open after sundown, or rendering the election void, if the poll be not opened and closed as therein required. The inspectors may indeed be liable to an indictment for the wilful violation of any of the statute regulations, but that is quite a different matter from the point we are considering.

If the particular hour of the day for opening and closing the poll be directory, and not imperative, the learned judge did not err in holding that the votes in the district in question should be allowed to Mr. Welch. The cases on the subject of what acts are directory, and what imperative, have-already been stated, and need not be repeated.

It has been held with regard to corporations, that the words “ between the hours of ten in the morning and two in the afternoon,” are not imperative, but merely directory, and an election may well be begun at any other reasonable hour. (Angell and Ames on Corporations, 94.) The particular hour in the day is not the essence, of the thing required to be done. Should inspectors on a cloudy day, and misled by a defective timepiece, close the polls a few minutes before sundown, or receive a few votes after that hour, if the time of day be of the essence of the thing, the whole election for that district would be void.

I can not subscribe to this doctrine. I think the statute is directory. Again, to show more clearly that the hour of closing the polls is directory and not imperative, suppose after every voter in the district had deposited his ballot, the inspectors should have closed the poll, although the sun was still an hour high; or suppose they had kept it open an hour after sundown, and no vote had been offered or received; who, in either casé, would have had a right to complain? Not the candidates, surely; for, with respect to them, the whole object of opening the poll at all, had been accomplished.

If the irregularity were wilful, the inspectors might, indeed, be punished by, an indictment; and this, I apprehend, is the extent of the remedy. I do not intend to assert that there may not be departures from the statutory requirement, with respect to the time of opening and closing the' polls, and with respect to some other matters which would put in hazard the whole vote of the district. It will be time enough to pass upon such a case when it arises. It is probably impracticable to prescribe a rule which will enable us to determine, in all cases, what irregularities of the inspectors will .vitiate an election.

It may be safely affirmed, that if the irregularity does not deprive a legal voter of his right, or admit a disqualified person to vote; if it casts no uncertainty on the result, and has not been occasioned by the agency of a party seeking to derive a benefit from it, it may be overlooked in an action of this kind, when the issue is as to which candidate received the greater number of votes, for a particular office, at a given election. There is nothing in this principle which holds out the slightest invitation to disorder at the polls.

Should a gang of rowdies gain possession of the ballot box, during or after the close of an election before the canvas, and destroy the whole or portions of the ballots, or introduce others surreptitiously into the box, so as to render it impossible to ascertain the number of genuine ballots, the whole should be rejected. It would in such case be the duty of the district inspectors to certify and declare the fact.

But the county canvassers, with a regular return from the district inspectors before them, which is fair on its face, have no right to go behind it, and prove that its estimates are unreliable by reason of rowdyism at the polls, or irregularities of the inspectors. They must act upon it as a regular return, and leave the parties aggrieved to their remedy through the. courts of justice. There were some exceptions of minor importance taken at the trial, which I have not noticed, because they were either frivolous or immaterial, and have not been urged on the argument.

The objection that the canvas in the 2d district of the 14th ward of New York was not public, does not apply to the state ticket, and has therefore not been noticed. The judgment of the supreme court should be affirmed.