New-York tribune., 1891-12-16
RETURNS STILL HELD BACK
THE pu1cHEss COUNTY CLERKS DELAY.

JUDGE FunsMAN GRANTS RESTRAINING ORDER
THE oNoNpAaA CASES ARGUED.
rBr TELEGRAPH TO THE rRIDuNE1
Albany. Dec. 1b-County Clerk Emans, Of Dutchess
County again neglected to-day to send to Albany tne
election returns Of Dutchess County. On Saturday
last he was directed BY Judge Barnard 10 send the
returns here as they the only truthful report OK
the election In that county, far Senator Is con-
cerped. But Mr. Emans has waited three days and
s the returns are not in the possession OF me sec
retary Of State. Governor Hill removed county Cierh
Hoffman, Republican Of Duchess County, last week
because he wished for one moments time to compare
the fraudulent returns presented TO him for signature
with the Official returns received by him upon elecuoh
NIGHT Yet here Is Mr.. Emans refraning for Three
days from sending the correct returns to Albany No
politician, however, dreams that Governor Hill VIII
decapitate Emans as he did Hoffman. So far as
David B. Hill is concerned, he IS an Executive armed
with powers to be used against Republicans who may
be charged with infringing the law, but not against
Democrats who openly defy the law. Fortunately
the State is soon to be rid Of an Executive OF tis
partisan chase.
News comes from Troy also that tho Democrats OF
putchess County applied to Judge Fursman, OF the
Supreme Court there this morning TOR an order
restraining County Clerk Emans from sending 10
Albany the correct returns Of the election In his haaos
and that Judge Fursman granted the order. The
Democratic State Committee recently Issued an ad-
dress 10 the people expressing its ardent desire to
have the election cases settled in the courts The
Dutchcss County case has been settled before Judge
| Barnard in Pcughkeepsie, and agnin before Judges
barnard Dykman and Pratt in Brooklyn yesterday Yet
prominent Democrats attempt to have this decision
OF the courts kept away from Albany and not revealed
to the State Board Of Canvassers.
The Court Of Appeals heard arguments to-day In re-
Jotion IN tba District returns.
Here Rufus T. Peck, Republican, was elected Senator
by $40 plurality yet his election Is disputed by the
Democrats upon the ground that the County Clerk OF
Onondaga County sent Republican ballots marked
wrongly, far the number OF the district was con-
oerned. There is no question that every one OF the
Republicans who voted for Mr. Peck intended to do So
It is therefore upon technicslty that the Democrats
are attempting to deprive Mr.. Peck Of his certificate
william Nottingham and ID. G. Goodelle appeared
10 represent Mr.. Peck and the Republican party's
interests The Democrats had as lawyers Lewis Mar
shall and J. Cannon. Mr. Nottingham in the course
OF his argument said:
The Legislature did not intend to have the voters De.
prived OF their votes by mistake Of errand boy in
distributing the ballots These votes are not assailed as
marked ballots. They were not preserved as marked
ballots ss required by the statute Then ae statue
says that unonicia ballots may be used If the oncial
ballots are not upon hand. claim that these In
sense, were unofficial ballots
What becomes Of the uniform ballot feature Of the
law IN inquired Chief Judge Ruger.
"That argument could be madeS replied Mr.. Not
| ungham, at II was claimed that the ballots were
| marked What were the officials in Camillus to do
when they discovered that the ballots were married
wronglyi Were they to close the polls9 Shall the
farmers be set to writing these wrong ballots-nearly
a foot longi Or shall they take the printed ballot,
even II It have q wrong indorsement7 submit that
any one would counsel the Inspectors to use the
printed ballot"
as is clear that these ballots were put up frregu
| Iaf1y1n inquired Judge Ruger
| awe have the affidavit OF the Deputy County
Clerk said Mr. Nottingham, that he had the ladies
of the Office arrange them. II there was any mistake
| 1t was an inadverence. The voters should not De
deprived Of their votes because OF that the voter
had written his ballot his vote could be identihed.
| submit that It is more important that man shoud
vote than that ii should be secret ballot Secret
voting had never been Indispensable This argument
would make subordinate feature of the voting TO the
chief one. Would you disfranchise 1,loo voters' ~
asuppose there were no official indorsementi' in
| qulred Judge Earl
Mr. Nottingham replied al think they would
have had the right TO them. The language OF the
statute shows that the County Clerk Is to supply
| ballots somewhat like those which may have been
Destroyed
| Lewis Marshall for the Democrats then made argu'
ment. He said in part
NAV IL please the Court: Mr.. Peck, the Republican
candidate for Senator and Mr. Munro, Republican can
Assembyman, were both affected by ths inter-
change Of ballots We all here agree as to the facts me
question whether the Comfy Board OF Canvassers OF
Onondaea County shall the 100 votes given for
Mr. Peck and the 049 votes given for Mr.. Munro The
question whether the BallotReform law has any ell
cheney We quote from the authorities of varods States
What was OF the ballot reform2 1t was 10
the independence and the secrecy OF the
ballot Attention called at an early day to the da1.
gerous powers of county clerks The Legislature nenaeo
that there should uniform ballot So all the ndorse'
be similar so that the inspectors should not
| know what ballot the voters voted
Judge Peckham interrupted Mr. Marshall with this
| question: as It your opinion that the ballots we're
sent wrongfuy with intention by the County Clerh? J.?
"That Is my opinion" replied Mr.. Marshall.
| "Thenn said Judge Peckham, II the Democratic
ballots had been wrongfully indorsed you argue tla'
| they should be cast OUT
| Mr. Marshall replied: ayes, sir.'
| Mr. nottingham had argued that If the Republican
Couly Clerk had intended to do wrong he would have
sent the Democratic ballots out wrongfully Endorsed.
| Chief Judge Ruger then inquired: "what was the
difficulty in the way OF feexchangng these ballosl'
Mr. Nottingham-That was impossible, owing to the
| long distances between the poingpla
"They could have taken Republican paster ballot"
| said Judge Ruger, with smile, and put it upon
Democratic ticket correctly ndorsed.'
Judge Andrews then had an important word to say.
"The voter" he said, "comes up and gets ballot
from on official source. The question is whether his
intent In voting shall be disappointed. Can you de-
prive him of his vote by this prohibition regarding
the proper jndorsement?'
Mr. Marshall answered: Frequently the rights Of
the voters have to give way to the general good The
intent OF the law is to have uniform ballot. The
cases we have cited from other states show that in
many cases votes are thus declared void. Besides,
the voter must have noticed that these Republican
ballots different from the others given him. That
was "A notification and warning to him that he had the
wrong ballot. John Jay and George Clinton once
against each other for Governor in this State and the
result OF the election disputed In that day they
took all the ballots TO Albany and counted them.
That was the Sherifs duty to take them to Albany.
1t SO happened that three OF the men who brought