New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1890-11-09
BALLOTS MUST BE COUNTED.

THE VOTER HAS THE RIGHT TO EXERCISE
HIS JUDGMENT AND EVEN Ills FANCY.
BOARDS OF ELEcMoN INSPECTORS NOT CLOTHED
WITH JUDICIAL. FUNCTIONS THE De-
CHsIoy IN THE TROY CASE RETURNS
TO PLAGUE TILE DEMOCRATS
IN MONTGOMERY COUNTY,.
tBr TELEGRAPH TO THE TRIBUsE1
Saratoga, Nov. s.-.Judge rockingham Fish, IN
the Supreme Court Special Term, at Ballston Spa'
THIS morning granted mandamus In the Mont
gomery County election matter. 1t compels the
Board Of Inspectors Of Districts | and I'LL OF
the town Of Mohawk to count and return twenty
ballots in the Ist District and thirty-two ballots
In the Hid District cast for Republican candi-
dates These ballots had been rejected as de-
fectlve for having upon them alleged fictitious
names, written as signals that the persons voting
had agreed to use them for money consideration.
The title of the case under which the motion was
argued, late yesterday afternoon is that Of the
people on the relation Of Abner III. Burtch against
David j.. Shields and others, inspectors Of cleo
uon Mr. Burtch is chairman of the Montgomery
Republican County Committee, and he was repre-
sented by Martin l.. Slower. of Amsterdam. Judge
Dorst and 4. j. Maxwell. also OF Amsterdam, ap-
peared as counsel for the board. Following is the
full text of Judge Fishs decision granting the
motion for a mandamus:
Probably the inspectors Of election acted in good
lots In question. They were, however, mistaken In
their view OF the law aud will, doubt make haste to
so any. other ballots found in the bal
Z, U the dfssS aed LAW in a@g
plates the action Of any voter who desires TO vote such
The voter goes alone into the booth for the purpose Of
preparing his ballot Indeed the section Is manda.
the law to enable voter to make such alteration
on his ballot as he chooses to fix i TO suit his notOns
whom he desires TO vote for any once, and may take
own selection Preparation: to be known paster
fs .n Of s s @ s @ S s
sires to vote. Section 25 Of Ballot Reform Act) The
@ Int & st g P the 'T Ss s.s m 1s s0 S saS sa
person, to suit his judgment even his fancy. The
Gr @ nd Inserting Sy the name me- Of % an unfit
without IT, violating any a% & a,o sDd eon
ons spTs Of ai he no
Nor can these ballots be rejected because the voter
o os rm is O and mot on the
ballots II IL had been enacted tlat the voting should
be Has to the ths o0n ro o who a
they pleased for some particular Office and inserted
Of he ea%didat md would not
the least affect the ballot as to al the other cana
ss o@s "f w would pi Sa Ss have either erect
Assume that the law has some crdities and perhaps
probable that the legislature intended TO give direction
to the citizen voter as TO whom he should vote for
II the statute bore such construction It could not not
awmaSing power would have been forgethl OF the
declalatve spirit and intent of Section Of
Atfic - nf thn rnnSt ifrtfin nf no Stafa
New York. Under the statute in question it might
well be that only one set Of names would be nominated
the S@lss Of the two
& mo esson in law Why Political mllennium may not
come when all the party conventions shall agree upon
In Sat hate event only W one st nomination would get on file
pd only one ofeiai ballot be printed In that hat case case
into the private booth, with single ballot to look at
and contemplate for not less than three nor mos than
names upon the ballot, and yet with the mandate Of
the law before e. him m That ho he shall prepare MS ballot
would constitute the only preparation allowed that
tho pen, ink and papers required by Section % would
lose importance an and would become useless ap
section s5 Of the act prohibits pSl any voter from from
makes the person xh. does 50 sulty Of q %isd.
i so marked Is not condemned and cannot be rejected
The defendants the inspectors have assumed that the
body, intended as means Of Identifying the particular
wclifounded and it might be said that such the
purpose, 1t would not defeat invaldate the
be rather dangerous and unsafe experiment TO reject
and refuse TO count the ballots so changed because
precedent ought not to be given standing, and should
be marked with disapproval .,.,,.. ,,..o.- ..
election the county canyassers to go be-
an "d to the a % msSvs sS n'0 in an Rons yoS H.
motives of no consequence. He may be moved
by impure unwse motives and yet his motives or
design in voting cannot he called into question The
ballots must be counted they appear IL the box inst
they cast and that is the end of the law The
Serious discussion and arc not doubtful or difficult to
understand. II there was room for divided opinions
issue It Is only when the facts are entirely clear
and free from doubt that the extraordinary writ should
There is some conflict Of judicial authority as to
the power of the board Of inspectors and as to the
and complete defective work In the People ex rel.
Gage agi; Riordan, 40 Hun, the supreme Court at
sRS''G its sanya'"S Rs as IS s'ss S'' @
and in that it held that after The board had
how defective or Illegal the inspectors functIs
oicio' as board and could not be reconyened so that
rel stapleton, agt Bell 81 Hun 5e0 the General Term
OF the Third Department Of the Supreme Court directed
stitutng half OF tho full board of inspectors OF election
Ill the case before them, when they protested tnat tie
particular return In question not true return
and 10 their knowledge did not contain true state
ment Of the votes rcceivcd at the election, and held
In emphatic terms that the inspectors were not clothed
with judicial functions aud that in making canvass
of the votes they were not acting judcaly and the
fair deduction from that decision is against the theory
OF any Official power after the canvass Is
over. minority OF the court as then
constituted sought with much earnestness; but failed
to impress upon the judicial result like that
claimed by the distinguished counsel who appear
for THE defendants In this and 1t may be said
that the Troy taken TO the Court OF Appeals
and the decision affirmed, that the principle de-
cided In that By the Supreme Court has the ap-
proval OF the highest court Of TIE State. The neces
sy for prompt action In this dcprives the court
OF an opportunity for extended examination Of the |
authorities and the must go upon very hasty
and href consideration As the facts entirely |
clear the Troy case supra may be with safety followed
Let the mandamus issue proposed by the order TO
show cause.
CHICAGO 10 BoyD TyELF FOR TIE FAhR