The People v. Pease. tion of the statute would be inconvenient and even mischievous in its tendency, and that its allowance would be intolerable in practice. I would not impute to the legislature an intention to provide such a system, without the clearest indications appearing in the language of the statute; and I am unable to see any evidence of such a design. A good deal of reliance, on the part of those who differ from the foregoing conclusion, has been naturally placed upon certain decisions of this court, in which it has been held that on the trial of an information or an action in the nature of a quo warranto, extrinsic evidence may be received to show that ballots not allowed to a candidate in the official canvass, and in which his name was not accurately written or printed, were actually intended for him, and they have been estimated and allowed accordingly in the determination of the title to the office. We have, however, recently held that it is only the intention of the voter, as expressed by the ballot, interpreted, if necessary, as all written evidence may be, by proof of the concomitant circumstances, which can be taken into consideration on the trial. If the elector who deposited the vote should swear ever so strongly, that he intended it to be for a particular candidate, it could not be allowed to him, unless it appeared, upon the other competent evidence, that his name was actually written or printed upon it. (The People v. Saxton, 22 N. Y., 309; and see also The People v. Seaman, 5 Denio, 409.) I have examined attentively the several cases in which it has been held that, in a suit in the nature of a quo warranto information, the court were entitled to receive evidence in addition to the documents authenticated by the town and county officers concerned in conducting the elections and the canvassing of the votes. (The People v. Van Slyck, 4 Cow., 297; Ex parte Murphy, 7 Id., 153; The People v. Ferguson, 8 Cow., 102; The People v. James, 19 Wend., 81; The Same v. Vail, 20 Id., 12; The Same v. The Rensselaer Turnpike, 23 Id., 222; The Same v. Heath, 3 Hill, 42-47; The People v. Seaman, 5 Denio, 409.) None of those cases, I think, afford the slightest countenance to the position that the qualifications of The People v. Pease. voters who have deposited their ballots can be subsequently examined. These cases may be arranged into two classes: those in which some error or omission of a clerical nature had occurred in the returns or statements which the election officers are required to make, as in The People v. Van Slyck and The People v. Vail; and those in which one of the parties had been defeated by the failure to allow votes intended for him, but in which his first name had been written with initials only, or was in some other respects imperfectly written. The People v. Ferguson (8 Cow., 102, decided in 1827), was the first of this class. All that was necessarily decided was that votes for H. N. Yates ought to be allowed for Henry N. Yates, on proof that these initials were used by Henry N. Yates, and that no other person of that family name was voted for for the office. Chief Justice SAVAGE, in preparing the opinion of the court, went somewhat further than was necessary, or can now be sustained. He was of opinion that a voter was competent to testify for whom his vote was intended, which, as has been stated, has been reconsidered by this court; but the case in other respects, and in its main feature, has been steadily followed from that time to the present, and is now the undoubted law of the state. (See The People v. Seaman, supra; The People v. Cook, 4 Seld., 67; S. C., 14 Barb., 259.) The same kind of evidence was received in the case before us, and, as has been mentioned, its competency was not disputed on the argument. It was, no doubt, a very liberal construction of the election law, which enabled this court, in the first of these cases, to act upon evidence which the officers concerned in authenticating the results of an election were not authorized to receive. But the justice of the case was so manifest that it is not surprising that the matter of form was dispensed with and the clear intention of a majority of the electors was allowed to prevail. The legislature, I conceive, at least impliedly, acquiesced. As the election law originally stood, the inspectors were directed, immediately after completing the town canvass, to destroy all the poll lists and ballots made and taken at the election. (Laws 1822, p. 273, § 9.) The Revised Statutes contained this direction, except The People v. Pease. as to ballots rejected as imperfect, which were to be preserved and filed with the town clerk. (1 R. S., 138, §§ 51, 52.) It was about the time of the preparation of this chapter that the case of The People v. Ferguson was decided. It was perhaps supposed that all ballots in which the name of the candidate was not accurately written would fall under the denomination. of imperfect ballots. But a ballot might be intrinsically perfect, in which the name of the person intended to be voted for was not accurately written. Hence, in the next election law the inspectors were directed to attach to their statements one ballot of each kind found to have been given for the officers chosen at such election, or any or either of them. They were also, as in the former law, to attach to the same statements the defective ballots. The statements and the poll lists were to be filed in the town clerk's office, but the remaining ballots not so attached to the statement were to be destroyed. (Laws 1842, p. 1223, §§ 42, 45-47.) These provisions are still in force and governed the election of 1857 in question in this case. It will be seen that the legislature finally co-operated with the courts in carrying out the principle of the cases referred to; but it is evident from their persisting in requiring all the ballots except a sample one of each kind, to be destroyed, that they had no idea of encouraging a scrutiny as to the qualifications of electors who had given their votes, by preserving evidence by means of which such scrutiny might be prosecuted. The foregoing considerations have led me to the conclusion that the judgment of the Supreme Court ought to be reversed and a new trial awarded. WRIGHT and MARVIN, Js., also dissented. Judgment affirmed. Chenango Bridge Company v. Binghamton Bridge Company. 27 87 THE CHENANGO BRIDGE COMPANY v. THE BINGHAMTON 116 185 BRIDGE COMPANY. 27 87 143 610 27 87 It seems that the act incorporating the Susquehanna Bridge Company (ch. f161 163 89 of 1805, § 38), and made applicable to the Chenango Bridge Company (ch. 119 of 1808), does not, by giving it all the rights of the Delaware Bridge Company, confer upon it the benefit of a provision in favor of the latter company that no bridge should be erected within two miles of its bridge across the Delaware, so as to guarantee the former against. the erection of a bridge within the like distance from its bridge across the Chenango: Per WRIGHT, DAVIES and MARVIN, JS. But if that be otherwise, the provision that it shall not be lawful for any person to erect such bridge, or to establish a ferry, within two miles, is to be construed as prohibiting the establishment of a bridge or ferry under the laws then existing, and not as a contract, by which the legislature renounced its power to authorize such bridge or ferry at any future time. APPEAL from the Supreme Court, where the plaintiffs commenced this action in the year 1856, to restrain the defendants from using, or allowing travel or taking toll upon, a certain toll bridge erected by the defendants across the Chenango river at Binghamton, in violation, as the plaintiffs claimed, of the exclusive right secured to them, under the act of the legislature pursuant to which their own bridge over said stream was erected. By an act of the legislature, passed in the year 1805 (ch. 89), a corporation was created, entitled "The president and directors of the Newburgh and Chenango turnpike road company," for the purpose of constructing a turnpike road from the village of Oxford, in Chenango county, to a point mentioned on the Newburgh and Cochecton turnpike road, crossing on the route the Susquehanna river, and the east and the west branches of the Delaware river. A right was reserved in the legislature to dissolve the corporation, and to vest its rights and interests in the State, by repaying the money it might have expended and ten per cent interest thereon. By Chenango Bridge Company v. Binghamton Bridge Company. a subsequent part of the same act, another corporation, called the "Neversink Turnpike Road Company," was created to construct a road from a point on the Chenango river at or near Chenango Point (now Binghamton), to intersect the road of the first mentioned corporation at a point mentioned; and also a road from another point on the first mentioned road on a certain route through the town of Neversink to a highway leading to Kingston Landing. The act then proceeded with the following recital: "Whereas, the foregoing road incorporation cannot be successfully carried into effect, or the public convenience fully promoted, if durable and permanent bridges across the Susquehanna and Chenango rivers, and the east and west branches of the Delaware river, at the several places of intersection of the said roads; are not at the same time erected and maintained; and whereas, by reason of the great expense necessarily to be incurred in erecting and maintaining such bridges, on account of the size and rapidity of these streams, and the extraordinary freshets and frequent obstructions happening in these rivers to which such bridges will be exposed, and which will endanger their permanency and durability, and may call for a frequent renewal of the whole capital required for rebuilding such bridges, and therefore require a power (not contained in the foregoing incorporation), of calling from the stockholders from time to time such sums as shall be required for upholding such bridges, and which equally forbid the policy incorporated in the foregoing incorporation, that said property shall revert to the State; and whereas, it is suggested that it will be most expedient for the purposes aforesaid to make two separate and distinct bridge incorporations, with powers adequate to the accomplishment thereof in the best possible manner, therefore," the act proceeds to create a corporation to be called "the president and directors of the Delaware Bridge Company," to erect bridges over each of the said branches of the Delaware river, where the said branches are crossed by the route of the said turnpike road. The usual detailed provisions are made, including a tariff of tolls which the company is authorized to exact from persons crossing the |