New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-12-08
BALLOT CASE UP MONDAY.
TO COURT OF APPEALS.
Because of Former Decision En-
Judge Parker Nag Not Appear.

The order of the Appellate Division of the su-
preme Court reaf1rming the original order of Jus
tice Amend for the opening OF Eve ballot boxes for
recount OF the votes was settled yesterday. and
an appeal from it taken in the regular way by
Corporation Counsel Delany. An arrangement was
made to have the case heard by the Court of APP
peals on Monday morning at Albany. E. B. Whit
ney. OF counsel for William R. Hearst. was in Al
bany for the purpose of obtaining speedy hearing
OF the argument the appeal 1t was arranged
that counsel for Mr.. Hearst should have the oppor
tunity to show to the Court of Appeals the tally
sheets and returns which disagree. on which the
order for the opening of ballot boxes in the mayor
atty fight was based
Austen c. Fox will be one of the counsel to ar
que the case for Mr.. Hearst before the Court of
Appeals. and it is expected that Corporation Coun
sci Delany will appear in person to argue against
the order as the representative of the election off
GERS There appeared TO be some doubt yesterday
as to the appearance of ex-Judge Parker in the
case, since it the opinion he wrote fer q
majority of the Court Of Appeals, UNFOLDING the
right of mandamUs in similar election case, that
the decision of the Appellate Division was based
in part. In the case of Brink against Way Mr.
Parker, as Chief Judge of the Court of Appeals.
wrote the prevailing opinion, in part as follows:
If it IS the duty of a town board of canvassers
motion upon their attention being called to viola
tions Of the statute by some one or more MEMBER
then the court had power TO grant the writ loL
recount whenever the statute places upon d town
board Of CanvasseTs the duty Of recountng.
Thus Section 81 Of the Election law provides that
the sum OF the ballots for office, as shown
by the tally sheet must equal the number OF bal
lots voted, shown by the ballot clerks re-
turn of ballots. and that IF it does not there has
been a mistake in the count. and the ballot must
be recounted for such office"
In such case. as we see it. it is, by the statute,
made the duty Of the board of canYassers TO re
count the ballots, which means that the5 shall fol-
low the procedure required by the statute for
count Of ballots in the first instance.
In the event OF failure to make such recount
the court may, by mandamus, compel it. ANY duty
which a statute provides that a board Of canvass
ers shall in the future perform. may be enforced
by mandaTUs.
The decision. in which Judges Gray. O'Brien,
order Mr. Hearst's counsel have been fighting for.
and Mr.. Parker would have to reverse himself in
argument against the order AS the judges who
concurTed with him in the opinion still form
majority Of the Court Of Appeals Mr.. Hearst's
counsel feel confident that the court will uphold
the original order Of Justice Amend. since it is
not the custom of the Court of Appeals to reverse
one Of its decisions
Confidence in the result Of the argument Mon
day shown yesterday by Mr.. Hearst's counsel
for they were hard at work preparing the papers
IN applications for court orders for the openn" Of
25 ballot boxes in Kings County and go ballot
boxes IN New-York County. It IS possible that
the applications for the orders will be made TO the
courts tomorrow, in order that there may be
delay in obtaining the orders when the Court of
Appeals has given its decision.