App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. way until after April 6, 1897. This timber consisted of round sticks varying in diameter from four inches to twelve inches, and was four feet and four inches in length. About ten o'clock in the evening of April 6, 1897, the plaintiff was riding in a buggy, drawn by one horse shown to have been gentle, and while passing this timber the horse was frightened by it, the fees, therefore, the value of their services is a county charge. The statement made that the civil business is but "incidental" to the public business of the office, we regard as without foundation; but even if the statement were correct, it would not be material or affect the determination of this case either one way or the other. Nor does section 11 make the deputies' salary a county charge. A regular deputy, having a salary from the sheriff, is not entitled to any compensation for the specific services mentioned; so if he is under salary from the county-but he is not. No authority is given to the sheriff to fix or allow salaries to his subordinates, nor is any authority given to the board of supervisors to fix or allow such salaries. (And note that the under sheriff is not mentioned.) But the counsel for the relator contends that the under sheriff and the two deputies are entitled to compensation for their services from the county as "necessary and actual disbursements" incurred by the sheriff. To put the proposition in another form, the sheriff is entitled to receive from the county funds, as "disbursements," a sufficient sum of money to compensate his subordinates and assistants for their general services for the benefit of the county. This contention is founded upon section 10 of the statute. This proposition is not maintainable. If sound in principle it would abrogate the well-settled rule of law, that if the compensation of an officer is not fixed or allowed by statute, his services, if of a strictly official nature, must be deemed gratuitous. It would be a novel doctrine, indeed, to declare that, where the statute makes no provision for salary or compensation for deputies authorized or directed to be appointed in public office, they may obtain the same through the principal officer under the name of disbursements. This would be a palpable evasion of the rule of law and ought not to be countenanced or upheld. It may be a serious omission of the Legislature, but the courts cannot supply it, for their functions are not legislative, but of a judicial character only. The principal and his deputies accept their positions with knowledge of the defect in the statute, and they must, therefore, perform their duties gratuitously and trust to the justice of future Legislatures. The fact that the fees or salary of the principal officer are wholly inadequate in amount for the payment of his deputies gives to the latter no legal claim against the public authorities, nor does the payment by the former of a salary to the deputy give him any legal right to claim reimbursement. It is not claimed, and cannot be, that the sheriff's assistants have any legal claim against the county, or that a writ of mandamus could, upon their application, issue to compel the board of supervisors to audit it. It should be noted, also, that the claim is for general services as deputies or assistants, rendered not APP. DIV.-VOL. XXXI. 47 FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. overturned the buggy and severely injured the plaintiff. The evidence shows that this plaintiff was free from contributory negligence. Five witnesses testified that horses described as gentle were frightened by this timber when driven past it. On the other hand, eight or nine witnesses testified that they had driven past it and that their horses were not frightened. The defendant's commissioner of highways lived within a mile and a half of the obstruction and saw it between the tenth and twentieth of March. At this time he had in his hands about $1,000 of highway money, but took no steps to remove the timber or to compel the person who left it there to remove it. At the close of the evidence the court directed a verdict for the defendant, to which direction the plaintiff excepted and moved for a new trial on the minutes, which was denied. The court erred in directing a verdict for the defendant and in denying plaintiff's motion for a new trial. The evidence presented two questions of fact which should have been submitted to the jury: (1) Whether a man of ordinary intelligence and experience with horses and highways should have foreseen that this irregular pile of timber, lying by the roadside, was likely to frighten horses? and (2) was the defendant's commissioner of highways negligent in permitting this timber to remain upon the roadside from March 1 to only for the benefit of the county and State for which the county receives the fees, but also for the services they were called upon to perform for the benefit of the sheriff and of individuals in civil causes. If such claims were allowed, it might result that the salaries allowed to the deputies, etc., would exceed the fees received by the county. Counsel for the respondent has called the attention of the court to the provisions of section 3280 of the Code of Civil Procedure, which provides that: Each public officer, upon whom a duty is expressly imposed by law, must execute the same without fee or reward, except where a fee or other compensation therefor is expressly allowed by law. An officer, or other person to whom a fee or other compensation is allowed by law, for any service, shall not charge or receive a greater fee or reward for that service than is so allowed." Counsel has urged upon the court various equity reasons and considerations in support of his position that the relator ought to be reimbursed for the salaries paid to his subordinate officers. The powers of the court are circumscribed and its jurisdiction limited to the bounds set by the Constitution. The province of the court is to ascertain and declare the law, not to make it. It cannot trespass upon legislative ground. The remedy is legislative and not judicial. The application for the writ of mandamus is denied, with ten dollars costs and disbursements. App. Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. April 6, 1897? Had both questions been found for the plaintiff he, if he were free from contributory negligence, would have been entitled to a verdict. The rule laid down in Tinker v. N. Y., O. & W. R. R. Co. (71 Hun, 431; 92 id. 270) and Stewart v. Porter Mfg. Co. (13 N. Y. St. Repr. 220) is applicable to the case at bar. Four witnesses sworn for the defendant were permitted to express their opinions that the pile of timber was not likely to frighten horses. This evidence was received over the objection of the plaintiff that the opinions of the witnesses were not competent. The location, size and appearance of the pile of timber were described by the witnesses, and photographs of the timber were produced, and the question whether it was likely to frighten horses was for the jury, and not a question to be determined by the opinions of witnesses. (Ferguson v. Hubbell, 97 N. Y. 507; Lawson Ex. & O. Ev. 22.) The order should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Order reversed, with costs; verdict set aside and a new trial ordered, with costs to appellant to abide the event. THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOEL G. DAMON, Respondent, v. RALPH C. FESSENDEN and Others, Appellants. Official ballots containing no mark of any kind, although the names of the candidates of but one party are printed thereon, cannot be counted. Under section 105 of chapter 909 of the Laws of 1896 (the Election Law), where but one ticket -a Republican — is nominated to be voted for at an annual town meeting, and consequently the official ballot contains but two columns, one headed "Republican Ticket" and the other "Blank Column," ballots which have no mark of any kind, either in the circle at the head of the Republican column or in the voting spaces at the left of the names of the candidates in the Republican column, nor any names written in the blank column, cannot properly be counted by the board of canvassers in favor of the candidates whose names appear in the column headed "Republican Ticket." FOURTH DEPARTMENT, JUNE TERM, 1898. [Vol. 31. APPEAL by the defendants, Ralph C. Fessenden and others, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 16th day of March, 1898, directing the issuance of a peremptory writ of mandamus commanding the defendants, members of the board of canvassers of the town of Gerry, to meet and recanvass the ballots cast at the annual town meeting of said town, held February 15, 1898, for commissioner of highways, and count for Joel G. Damon, the relator, a candidate for that office, seven votes rejected by the defendants at their original canvass. A. C. Wade, for the appellants. Frank W. Stevens, for the respondent. FOLLETT, J.: But one ticket-the Republican was nominated for the annual town meeting of the town of Gerry, held February 15, 1898, and consequently the official ballot contained but two columns, one headed Republican Ticket" and the other "Blank Column." All of the candidates of the Republican ticket, except the relator, were elected, substantially without opposition. One hundred and ninety-four ballots were cast for the office of commissioner of highways, twelve of which were rejected, and of the remainder, one hundred and eighty-two, ninety-three were counted for Dennis Smith for the office of commissioner of highways, voted for on the blank column, and eighty-nine for the relator, the candidate on the Republican ticket for said office, and Dennis Smith was declared elected to the office of commissioner of highways by a majority of four votes. Seven of the twelve rejected ballots were not counted because there were upon them no marks of any kind, either in the circle at the head of the Republican column, in the voting space at the left of the names of the candidates in the Republican column, or by writing any name in the blank column. The other five ballots were rejected for reasons assigned by the defendants in their return, but the rejection of those ballots is not challenged by the relator in his petition, and the defendants have not been commanded by the writ of mandamus to recanvass them. The facts in this case are undisputed, and the only question pre App Div.] FOURTH DEPARTMENT, JUNE TERM, 1898. sented is, in case an official ballot contains but two columns, one a party column and the other a blank column, and ballots are cast not marked in any manner, are such ballots to be counted in favor of the candidates whose names appear in the party column? Section 105 of chapter 909 of the Laws of 1896 (the Election Law) prescribes the manner by which electors shall indicate their intention to vote for persons to be chosen to fill the various offices designated on the official ballot : “It shall not be lawful to make any mark upon the official ballot other than the cross X mark used for the purpose of voting, with a pencil having black lead, and that only in the circles, or in the voting spaces to the left of the names of candidates, or to write anything thereon other than the name or names of persons not printed upon the ballot for whom the elector desires to vote in the blank column under the proper title of the office. * * * 1. If the elector desires to vote a straight ticket, that is, for each and every candidate of one party for whatever office nominated, he shall make a cross X mark in the circle above the name of the party at the head of the ticket. "2. If the elector desires to vote a split ticket, that is, for candidates of different parties, he must not make a cross X mark in the circle above the name of any party, but shall make a cross X mark in the voting space before the name of each candidate for whom he desires to vote, on whatever ticket he may be. * * * "If the elector desires to vote for any person whose name does not appear upon the ballot, he can so vote by writing the name with a pencil having black lead, in the proper place in the blank column." The ballot printed for the town meeting contained in the Republican column the names of candidates for all offices for which the electors at the town meeting were entitled to vote. It is urged in behalf of the relator that a ballot cannot be rejected except in two cases: First. When marked, torn or defaced, as described in the following paragraph of section 105 of the Election Law: "Any ballot upon which there shall be found any mark other than the cross X mark used for the purpose of voting, or a name or names written otherwise than as heretofore provided, and any ballot which shall be found to be defaced or torn, or from which there shall have |