New-York tribune., 1905-12-14
NO RECOUNT.

The Court of Appeals by a vote or nVe 10 TWO
has reversed the rule laid down by Judge Far-
ker in the Brink case and adopted Judge faTker
nresent opinion that the court is without power
to order a recount Of the ballots In an eiecIloh
district even when the return Of votes for the
candidates does not tally with the total nulnper
of votes cast. in which case, according 10 the
terms of the Election law, the inspectors HiuS'
make a recount This decision pracucally gives
Mr. Mcclellan the certificate of election and rele
gates Mr. Hearst to quo warranto or other pro-
ceadings to establish his title after January L.
Judges Bartlett and Vann, who dissent from
tbe courts finding, argue that the legislature IN
commanding the preservation for six months OF
tho .haIIots and other documents relating to an
election. manifestly intended to have them avail
able for recount and they say; IL tnls Is hoI
Ito be permitted under the present law new
"e1ection law cannot be too soon draIIed anu
enacted" With full respect for the courts
declaration that this is not permitted by the pres
emf law and the weighty reasons of public poilcy
which much more than the text OF the law prop
ably led to that view and made the Judges IT,
| I,,ctant IN assume an authority that might pro-
| long contests and unsettle government we thlnk
this statement of the minority just ana worthy
of attention No doubt 1t is highly deslraDle LllaI
the result of an election be promptly ana nllaliy
! declared But It is not less desirable that II oe
! honestly declared.
/
visions and vests in the inspectors extraordinary
nou,ers which are menace to the rights of cltl-
1anc If the courts stand off and refuse TO ENFORCE
unon the INSPECTORS the proper performance Oh
their duties. This law may be unWse ana III
voIve nicetes Of judgment on the part OF the III
J spectors which are likely TO delay counts ana
block government, as was pointed out III the
Feeney case by the Second Department Appel-
la+a Division in 1897 while the present Chlef
citt in j.
Though that court commented on the dangers OF
throwing a count into court and asked a change
i'm the law it did not for an instant think or
shrking the duty under the law or forcing
proper count of miscOunted ballots Last year
the Court of Appeals narrowed the scope OF that
supervisory duty, and held that the inspectors
couId not be forced by mandamus to make re-
count except in case the totals of the votes for
separate candidates and the tally OF votes cast
did not agree when the law affirmatvely calls
for a recount Now the court goes step fur-
tber and even in such case, developer by MT.
Hearst declares that 1t cannot order recount.
If in 1897 the law involved public dangers even
with competent judicial oversight, IN l9o3 that
same law. administered entirely without such
oversight involves greater dangers and as
Judges Bartlett and Nann say. should be mod1-
fed.
| Of old time the work of the election inspector
was purelv mathematical There was no such
thing as A void ballot. Every voter put his own
| ticket into the box 1t might be white or pink,
written or printed. That system gave free play
to bribery. and adequate provisions for watchers
and safeguards against ballot box suffers were
| wanting But the ballot, once IN the box, was
beyond question. The inspector had nothing TO
do but to count. The present law, however puts
upon the inspector a more delicate duty. It re-
uuires a special form of ballot containing certain
peculiar marks and no Others and any ballot not
| conforming 10 the rule must not be counted
The inspectors, from being mere counting ma
chimes, become possessed Of semi judicial func-
: tions. They decide whether not a man has
voted legally and count throw out his ballot
t On the correctness of their judgment of the
e length or character of pencil line a citizens
4 vote depends. and on that judgment, as now. may
{ hang the title to an important office. These
: men are often ignorant they work In haste they
q are subject to prejudice and prone to think the
e crosses for their candidates good and other
o crosses bad. In view OF this complicated duty
< and the likelihood of mistakes the trainers OF
d the law provided a safeguard against the
j new danger by ordering the preservation OF the
s ballots for six months. Yet it is finally dc
e terInined that this safeguard is OF no moment
V that a recount cannot be ordered and that these
r ignorant inspectors are practically the court o
: last resort who when they say that an iega
ballot is legal and lock ii in the box have done