New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-12-14
DECIDE AGAINST HEARST
Court of appeals, 5 to 2, Uph0SdS
Contention of Mayors Counsel.

%ro,- York ballot box case, sustalns the Gun
tention of counsel for Mayor George b. NC
f-lellan and denies that of attorneys Tor VIII
,r, randolph Hearst and his colleagues on
The Municipal Ownership League ticket Inc
r+ holds as was argued by ex-Chief Judge
r,.rl-er and his associates, that the courts nave
~ mower under the Election law to order by
roandamus the opening Of the ballot boxes anu
recount and recanvass OF ballots Inc case
-a1s4es directly TO the vote for Mayor Con-
.roller and President of the Board OF Alder
men cast In the % Election District or the
9Th Assembly District Of New-York County IN
.ts election of November 7, but is of the ut
-1os+ inheritance in Mr. Hearst's contest for
4bs maycralty of New-York City, and is fun
5an,ental in SITS effect upon the electoral sys-
ram NJ this State under the present Election
law.
The decision was rendered by g divided court,
h 10 2 the majority comprising Chief Judge
Cullen and Judges Gray, OBrien. Ha1ght ana
Werner. Judges Bartlett and Vann dissented'
The sist of the majority opinion, written by
Judge Gray, Is that the courts are wlthout
power or authority 70 order recount OF the
ballots cast in the election district" and that
therefore, the candidates defeated on the face
IF the returns are left TO such action at law.
mr. otherwise as may be appropriate wherein
TO question It, as 90 the ballots counted Win
out objection"
The dissenting Judges, Bartlett and Vann'
hold that the purpose Of the legislature IN the
Election law, in commanding the preservation
for six months of the ballots and other oocu-
Tnsnts relating to an election, was manlIestIy
to have them available for q recount Ii this Is
not to be permitted under the present law they
cav. - new Election law cannot be too soon
drafted and enacted"
Judge Gray, in the prevailing opinion says;
good reason may be found for the non oI IF
ference OF tnf e in the higher necessity that the
result Of public election should De pLoIp gi+ snail
irovn II is wiser policy that th9 rssuIL sLrii
not he still left in uncertainty after lts I
ron oy the is impoitc that the administration
of governmental affairs should pc sginned 6v
judicial reopening of the canvass at the instance
q any fnetT of action on the part OF the cleo
lion board was intended. and the power TO reTie%
appears be confined TO the Geclsoh upon
T4{ected as void or as marked for identlHca9on
Seftiob sia f eeh nave been Counted without
lection and sealed up 70 be maze "a 10 @ tile
Of his successful opponent TO the once me EeC
IN xplict directions as to the performance of their
duties by the election officials and there are pro
1Enshn9ent if guilty of maifeasance of neglect
Of og'5 ,eI inc and seal is directed for six
months as evidence for use in the courts | think
thai the presumption should obtain, as TO the pro
claimed result of the election, that the election Of
reaied candidate should be left to such action at
law or otherwise. as may be appropriate, wherein
5S Se question it as to the ballots counted "''n0u, 90
when. speaking for the Appellate Division, he says
that full scope may be given to the Election law
ufRorize s' The openg Of the Ballot boxes for the
ae Bo2o b b the Election o5cers He points out
what consequences would follow II Section -
granted IN this case, when he says IF the election
officers are TO be reconyened under the mandate Of
discrepancy between the ballot clerks return and
as +bev were On election night before iiIing ont
and certified copies thereof. If that be so, it fol-
to discover their mistake they not only would have
ne right but il would be their duty to reject from
overlooked enormously counted. It is evident
IN complaints lance With said Section s. the ee order should
not limit the statutory duty Of the inspectors on
the recount" Clearly, IL 1t should be held that
recount might be ordered under Section 81, II is
Nth t m nj hs 9feebe6 nd f With II te u sxeP
else of all the authority conferred as upon the
II SO important an exercise of judicial power of
sSouG have been stated and not left to mpiica
ti9n think il the sounder snd the safer view te
a6e @ i shOpd not be construed 1sto as
results az this order amounts to.
Referring to the much discussed "dictun1' of
Alton B. Parker. then Chief Judge OF this court,
and IN this litigation leading counsel for Mayor
~ case ana was strongly relied upon by the
Hearst attorneys. Judge Gray declares the ex-
preston to have been IAN unnecessary and too
broad statement Possibly enough he says.
when taken by itself IT would go very far to-
ward indicating the belief in the existence Of
the power to require recount. but It is not to
be taken II is apparent from the rest of
the opinion that the learned judge who delivered
the opinion. had in mind what might be done
before the canvass. and inadvertently expressed
himself on the subject" And he quotes the bal
ance Of Judge Parker's opinion at length in sup
port Of this view. He declares further that the
court is not 10 decide whether the election law
it stands, is sufficient. or whether the courts
ought 10 have the power to review the minis
terial work OF the election officers THE plain
duty Of the court" Judge Gray holds, lis simply
70 so construe the statute as to emectuate its
provisions. leaving it to the legislative power to
supply omissions TO remedy defects"
Judges Bartlett and Vann in their dissenting
opinion imply that the decision of the majority
involves "a construction that enlasculates the
ballot law and, as it seems 10 us, ignores its
plain provisions
The dissenting judges thus conclude their
opinion:
Tie present law has many defects, particularly
~ voijrg no same and radical amendments ars
required a fair election without disfran-
chsirg a large number Of voters by reason OF com
1iicsted provisions that not readily understood
IL il Is 10 be the settled construction of the
election Law that the ballots locked and sealed in
,aIaot
cannot be recounted save in action OF quo war
.snio which may drag for years through the
courts a new election law cannot be too soon
drafted and enacted. IT will certainly be great
disappointment to the cIJizens of the city of New
Tork n