The news & observer., 1896-12-27
AND BALLOTS COUNTED
SO Ordered esterday by jus
tice Walter Clark.
NO APPEAL CAN BE TAKEN
t.dGe Clark Says the Clerk lid Rigtt I
In Refusi,g to Obey the Order Tn
iii the Matter Could be
Passed Upon.

Never has there Deen an Act Oh ths
statute books in North Carolina requiring
so much adjudication as does our inn
maeuIate new election law. 1t is beyond
ell question one of the most imperfect
and ambiguous pieces of legislation ever
enacted, notwithstanding the fact that
many sections Of it were written by
Gosernor- Russell himself. So un-
certain are its provisions that the Su-
preme court has been called upon TO
decide almost every important point in il.
The last. and of It's most important pro-
visions passed upon is that in
regard 20 the preservation of the ballots
and their recount in, contested election
cases. This was decided by Justice Wal
ter CLARK, OF the Supreme court, at
Chambers yesterday, in the case of
Broughton VS.. Young for a seat in the
next General Assembly from Wake
county.
The question arose. il will be remem-
bered, in the hearing of the Broughton-
Young contest for seat in the General
Assembly from Wake county. as to
whether the Commissioner had a right TO
compel the clerk to produce the boxes
ard permit the ballots to be recounted.
This, the Commissioners ordered to be
done. but the clerk refused, having been
advised so to do by his attorney. There
upon 4 rule WIS obtained from Justice
Clark commanding Clerk of the Court
II. II. Young 20 appear and show cause
why he should not produce the boxes and
allow the recount.
The result of this hearing is that Judge
Clark orders the recount. 1t is TO be held
next Wednesday. at 10 O'Clock. in the
court house.
The proceedings were held in the SD
preme court rooms and consumed some
three hours. all the attorneys making
speeches. The contestant, Broughton,
was represented by Messrs. W. @.
Douglas. w. n. J.nes and G. NJ. Bus
bee; Clerk Young was represented by
Mr.. j. C. l.. Harris.
The hearing began with the reading Of
Mr.. Brougbton's complaint setting forth
the grounds for his contest and his rea-
sons for asking a recount. Jim Young's
answer was read by Mr.. Harris admit
ting all the allegations except the claim of
the contestant that he received a larger
number of votes than the contestee. He
denied also that the court had any author
ity to make the order prayed for by the
contestant, for the following reasons:
Efrst-That the law authorizes no re-
count,and that if it does the Commission
er is without jurisdiction in the premises.
Second-That the court has no juris-
diction in the matter, and that the power
10 open the boxes and recount the bal
lots, as the law is now written, resides
solely in the General Assembly.
Third-That il the law is construed in
this proceeding to permit a recount, the
contestant has made no case upon which
the court can order n recount except as
to the voting precincts of Swift Greek
and Stony Hill
In opening the argument for the con-
testant, Mr.. Douglas addressed his re-
marks TO the question Of ballots as evil
dence, and read the provisions Of the new
election law in regard to their preserva-
ton. He took the position that these
ballots were preserved for the purpose
Of a recount and for no ether purpose.
Authorities were read showing that the
ballots are the best evidence of the will
of the voter to be had in contested elec-
tion case. He said It was not only the
contestants right to have the boxes open
ed and recounted, but it was his duty.
A recount, he said, was demanded be-
cause it was charged that the count
was wrong and the returns did not set
forth the true number of votes cast for
the contestant.
AS 10 the contention that the Commis-
sioner had not jurisdiction, Mr.. Douglas
said that the contestant had taken the
double precaution Of having depositions
taken by Justice Of the Peace and
Commissioner. This Commissioners. he
held, had authority to compel any wit
ness, even clerk of the court, to pro-
duce any evidence, such as records, that
mighe be necessary-the express power
is given by the law 10 send for persons
and papers. He said that the ballots were
the best evidence, that the contestant has
right to this evidence, and upon refusal
OF the clerk to produce ii, it is the duty
of some Justice of the Supreme court to
compel him 50 to do. THE spirit OF this
election baw is to secure fair election
and the ballots are preserved for this
purpose. There can be no consistency
in refusing to allow ballots to be re-
counted after having kept them for that
purpose.
'It may be claimed that the Legisla-
ture alone is authorized to open these
boxes. II the Legislature has power to
open them il also has power TO authorize
some one else-its agent--to open them.
Now the Commissioner is the agent OF the
Legislature and is empowered to obtain
all the evidence possible"
In replying to Mr.. Douglas argument
Mr.. Harris contended that the Judge in
this proceeding had no jurisdiction and
argued that the provision of the new
election law giving a Judge general su-
peryision Of the election was meant to APP
ply only to cases before the election-in |
order TO secure free ballot and fair |
election. Besides, II the court refuses |
to take jurisdiction in this case, it does |
not leave the contestant without a RENE
dy. The Legislature after all is the SD |
preme judge, and If that body wants q |
recount il can order It within day.
Touching the question Of recount |
Mr.. Harris contended that tho ballots |
were not yet public records, being sealed |
up as they are. He said the clerk had |