New-York tribune., 1905-12-07
RECOUNT To BE REAL.
cain FOR Mr.. HEARST.
4ppeIIate DiCision Stays Proceed
ings Pending appeal, Ho5oe0er.

A decision of the Appellate Division Of the
s,.,raroe Court yesterday on the appeal of the
,rEer Of Justice Amend to open ballot boxes
ro- q recount was regarded by lawyers inter
+ed in the case as at least a temporary vic
,,r7- for William r. Hearst. The decision is
nat the order Of Justice Amend as at first
7a must be affirmed and that the election Of
srers summoned to court for the recount Of bal
lots in a box ordered TO be opened must make
~ entirely new canvass of all the ballots which
originally were placed in the box.
This means that the recount, if the decision
r+ands will include an examination of ballots
-b,cb may have been rejected as void ahc
n void" ballots which may have been counted
nv the election officers, It means the discovery
and correction of all frauds in the count in case
~ every ballot box opened before the court
uith the possibility of creating evidence against
,sa election officers who committed or permit
ted the frauds.
Counsel for Mr.. Hearst assert that If the oe-
,,siop stands they will be able TO unearth
enough fraud in the count TO wipe out the plu-
Ii+,- for Mayor Mcclellan on the face of the re
-, + Is declared that in the ballot box Of
tbo 81 Election District Of the 9th Assembly
T,ss+ric+ opened under Justice Amends order
.bsra we're ffty-one void" ballots counted for
MAYOR Mcclellan. Il was because Justice
Amends order, as ''resettled'' on the application
of the Corporation Counsel. did not permit
recanvass by which these void" ballots could
re thrown out in the recount that counsel for
MT Hearst took an appeal TO the Appellate Di-
vision.
While Nj Hearst's counsel regarded the de-
cis5on Of yesterday as victory. however It VIII
rest with the Court of Appeals TO which the
case is 10 be taken Immediately. to determine
What kind Of a recount viii be permitted, or II
env more boxes will be opened for a recount.
While the Appellate Division afirms the order
t. open ballot boxes as Mr Hearsts counsel
wanted it. there is the express declaration that
20 sfep must be taken under the affirmed order
until the Court of Appeals has given its fnal
decision in the case. There is also the intima-
ton that If It were not for q decision of the
Court of Appeals in an allied case the Appellate
Division would have decided against the order
Of Justice Amend altogether,
Justice Laughlin writes the opinion, in which
all the other justices concur. He says in part:
If the election officers are TO be reconvened under
account of the discrepancy between The ballot
clv t L o ~. G ~ % ,rsaise1I- the s9n1e sfuatfon
as they were on election night before the filing out
and signing the original statement Of thG canvass
and certifed copies thereof If that may be So it
follows thar on the recount required by the statlte
the right but It would their duty, TO reject from
count any void ballot tnat na0 Deen previously
overlooked or erroneoUsIy counted.
If this question were now presented to the courts
for the first time would be guided by our own
judgment, herein hastily and briefly and lmper-
feCtiv indicated. and vaCate the order upon the
ground that il IS unauthorized for that is our hrm
conviction. To permit such proceedings by man
damus means the destruction Of the elaborate
scheme worked out by degrees by successive legis-
latures to secure prompt and simultaneous count
and declaration Of the result on election night 1t
VIII substitute therefore by decision of the court
urOtracted judicial canvass Of the votes in every
election district of the State The resulting delay,
uncertainty and public anxiety can readily oe
fGreseeu
II appears, however that a majority of the mem
hers OF Court Of Appeals IN People eX rel Belnk
agt WAY 0T9 y. Y. ITD, have, IN a dtctum, eX-
pressed the opinion that nandamuS would lie 10
compel compliance the part Of the inspectors
with this very provision % Section 81 Of the Eec-
tion law. and the Appellate Division In the second
Department. within the boundaries OF. when are
verv many election districts wherein these same
candidates were voted for. and wherein the same
questions may arise has decided, in q not dis
tinguishable tn principle from the one at bar, tna
this remedy exists TO compel the performance OF
Div 5Se) We therefore feel constrained to fol-
low the decision Of the Second Department But
regard its doctrine unsound a stay or pro
CeedngS should be granted, to the end that beTore
the inspectors obliged 10 comply Herewith the
Court OF Appeals may, appeal from our
order which should taken and brought for
argument Immediately. definitely decide this ques-
ton Of such great public Importance
It follows. therefore. that the order should be
modified by conforming II 70 the order as originally
entered. except that the words ''or recanVaSs'
should be stricken out. cOn1ning the direction to
recount" as prescribed in the statute and as 50
modified affirmed.