New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-12-12
ADVOCATE VERSUS JUDGE.

The spectacle Of Judge Parker arguing before
the Court of Appeals against the correction OF a
false count suggests that If the Psalnlst mad
been a lawyer he would have written: oh that
mine enemy may once have been judge| Inc
difficulties of an advocate having TO maintain Tor
nav doctrines which with Judicial impartiality
he has already demolished from the bench must
be as irving 10 the lawyer as amusing to the
layman.
The inspectors in some of the election districts
sent in returns of votes for candidates the sum
of which did not correspond with the record OF
the total number of votes cast. That dlscrep-
ancy led to the discovery Of mistakes or frauds
and the order to open the ballot boxes from
which Mayor Mcclellan is appealing According
to press dispatches Judge Parker yesterday con-
tended that there was nothing to be found In
Section 81 of the Election law authorizing the
court to direct either recount or recanvass
of the vote He held that g recount could not
be ordered even though discrepancies did exist
between the tally sheet and the ballot clerks
return. Section 81 required that the recount
should be officially made by the inspector On the
night Of election. If an actual mistake was
made it was the duty of the inspectors then and
there to make a recount If their failure to DO
so, as provided in Section 81, might be enforced
by mandamus after the ballots had been placed
IN the box and it was locked and sealed, why,
he asked. might not every act of omission be en-
forced by mandamus and every close election
complicated by judicial canvass continuing for
weeks months or perhaps even years!
The Court of Appeals at the August term OF
1904 handed down decision in the case of the
PeopJe ex rel. Brink agt. Way, in which the
mower to direct recanvass for general failure
of inspectors to discharge their duty was de-
MED, but at the same time the right to man.
damus was upheld in cases where the statute
in
Judge Parker. writing the majority opinion,
said
If it is the duty Of town board of canvassers
to reconvene and recount the ballots on their
own motion upon their attention being called TO
violations Of the statute by some one or more
members then the court had power to grant the
writ, for the court has power to compel a re-
count whenever the statute places upon the
town board of canVassers the duty OF recounung.
Thus Section 81 of the Election law proV1des
that the sum of the ballots cast for any ONCE
as shown by the tally sheet must equal the NUM-
her Of ballots voted, shown by the ballot
clerks return of ballots, and that IF 1t does NOT
there has been a mistake in the count, and the
ballots must be recounted for such Office IN
sucb case as we see it is by the statute made
the duty Of the board Of canVassers TO recount
the ballots, which means that they snail follow
the procedure required by the statute Tor count
of ballots in the first instance. In the event or
a failure 20 make such recount the court may
by mandamus compel it. Any duty which .La
statute provides that board OF caHVasserS
shall In the future perform may be enforced Dy
mandanus.
OF course, such a recount by mandamus as the
opinion speaks of could not take place on cleo
ton night and the Chief Judge had no notion
but that when the discrepancy was noticed 1t
was the duty of the canvassers, Of their own
accord. to correct it, and that If they did not
the correction could at & convenient time be en-
forced by mandamus. That is exactly the case
now. 1t would have been the duty Of the in
spectors to correct these returns against which
Mr.. Hearst protests on the night Of election If
they had discovered the errors in them AS they
failed to discover them. or consciously shut their
ewes TO the errors the duty continued. and, if this
opinion is correct, can be enforced by mandamus
Whatever may be the case with regard to mis-
counts in general, Judge Parker would seem
TO be definitely on record respecting the proceed
ure when the number of ballots shown by the
tally sheet does not equal those shown by the
ballot clerks return. He is rather hard pressed
when he is forced to plead, as he was yesterday,
to the Court of Appeals that it should not be
bound by the opinion which he wrote for 1t
year ago.