The news & observer., 1896-12-27

way the court can now grant the relief
prayed for is for the judge to ieglslate
himself. This. Of course; you cannot
do"
MIR. Harris thought that the application
for n recount was u reflection on the
fairness and honesty of the pol-holders
and that the contestant ought to be
forced to bring up afiidavits TO hack him
ttp in his assertions. He said the conte~-
tants remedy was an action against the
officers OF election for fraud. In case the
court should order a recount he held that
the only townships in which such re
count could be ordered were Swift
Creek and Stony Hill, the ones In which
specific charges were made.
The question OF jurisdiction wss ar
gresi at length by Mr.. Jones. He pointed
out that very large and discretionary
power wac given TO judges by this new
election law. It was intended 10 put such
safeguards around the election as 10 car
rv conviction to every one that II was
the will OF the people. The
greatest and most important precaution
of all il the preservation of the ballots.
The best evidence always Is written,
documentary evidence. To deny this ap-
nlIn0ftOn
take il believed to have been made and
ii is simply asked that the question be
determined and determined in such way
as 70 forever hereafter put It beyona
all dispute.
AS a general proposition, Mr.. Jones sad,
Yhere must have been some mistakes in
TIE count. There are 36 voting precincts
in the county and only Ii votes defer
ence between Mr.. Broughton and Jim
Young. While there were no specific al
legations in regard to many precincts, yet
the allegation was made general aud re-
count of the whole county asked for
THE contestee asks that the recount be
granted only in the two in which the spc-
cifc charges OF difference Of niae votes
il made. Is il not reasonable 20 suppose
that mistakes were also made in other
precincts! Can il do any harn To re-
count the ballots if no mistake was made?
Shall we stand on tecknicality and wait
Tor the Legislature to pass another law
bcfore Ii can he determined whether or
;ot Mr. Broughton is elected to the GeG-
eral Assembly,
Mr Bushee pointed out that the law in
regard To contested election eases provid-
ed that when the General Assembly meets
ii shall have all the evidence before il,
with affidavits, depositions. exhibits. etc
TO do this, the ballots must be recounted,
Further, Mr.. Busbee called attention to
the faet that in the several eases recently
decided by the Supreme court in regard
To the ncw election law, the court
tad never touched the law that IL didn't
widen and broaden it. A liberal eonstruc-
tion had uniformly been given it's provis-
ion-its object being TO secure free ballot
and fair count
The question of jurisdiction Mr.. Bus
bee held, should not have been brought
into this case. 1t is the only way-the
courts decision--by which the clerk can
determine his duty in the premises. II
should be the clerks intention 10 find out
lis duty and then do It,
Mr.. Busbee said that the contestant CON
tended that his name was printed upon
many Republican tickets that were cast.
but when the votes were counted no no
tice was taken of his names being there
on: the ticket was counted as straight
Republican ticket. 1t was such mistakes
as these, be said that forced the contes-
tant to ask for general recount of the
ballots for proper preparation of his
case.
At the conclusion Of the argument,
Judge Clark gave in writing the following
decision:
Upon hearing counsel. for and against
the motion, / am of opinion that the OBJ
ject of the statute in requiring the pre-.
serVation Of the ballots, in duplicate bal
lot boxes, duly sealed up, is that they
may be kept as evidence to verify or
correct the election returns.
IF quo warranto was being tried in
the Superior court, certainly the Judge
presiding might order said ballot boxes
brought into court and q recount made
In the presence OF the court and jury
In contested elections for members OF
the General Assembly and members of
Congress the evidence is taken, not be-
fore jury, but before Commissioner
and submitted upon dispositions. There
fore If the same benefit OF the recount OF
the ballots is to be had, as on the trial
or quo warranto, there must be an
order to have the examination of the
ballots made before the Commissioner
and the result reported to the legislative
body. 1t is not possible that the I.egis-
lature intended that the clerks of Chero-
kee or Dare or any other county should
attend with their numerous ballot
boxes before the General Assembly in
Raleigh, or before the Congressional
committee on Elections
Il am OF opinion that the clerk properly
declined to permit the boxes to be opened
and recount made on the motion OF
Commissioners to take depositions and
that this should only be done upon the
order OF judge of the Superior or Su-
preme court under the supervisory pow
ers conferred by chapter 159, acts 1895.
The. powers thus conferred do not cease
on election day but cover all matters
pertinent to the scope of that act, in
Guiding the election and the returns. The
act by it's tenor Is to be literally con-
strued with a view OF effectuating it's
purposes Of securing both "a free ballot
and "a fair count The effect Of the
recount, as well as Of the original returns,
is for the General Assembly who are to
to judge of the qualification and election
of their own members, but that honor