New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-12-15
HEARST GUNS NOT SPIKED.
FLAG NAILED TO MAST.
sill Hopes to Sink Political Pirates
Mr.. IUims Criticises Court Decision

Mr.. IUins CriticiSes Court Decision
The declaration that William R. Hearst would
Tan ND TO the bitter end his fight TO prevent
,Fsx7or Mcclellan from receiving a certificate
~ election was made yesterday by Clarence ].
sbearn Mr.. Hearsts personal counsel Mr..
sbesrn said that the purpose of the fight would
=. to expose frauds IN the election and furnish
sv3sence 70 punish the perpetrators OF them.
He added;
To this end every means left available by the
secision OF the Court OF Appeals will be resorted
- to open ballot boxes. For example, boxes may
Re opened in aid Of criminal proceedings; appli-
cations may be made to open boxes to determine
whether void ballots had been counted. ruled
mon by Judge Giegerich; also boxes may be
onened to withdraw therefrom void ballots under
The Maxim case
T,znecial attention viii be devoted to the Grim
,nsI side OF the case. and when the legislature
-oeats an effort viii be made to have enacted
e. the earliest possible date amendment to the
;sw along lines suggested by Judges Vann and
rs-tlAtt in their dissenting opinion, and further
nrovidng for an actual recount by the inspectors
If al the ballots cast at the last general election
The results OF such a recount will be available
far immediate use in quo warranto proceedings.
which under such circumstances, barring ap-
nseIS Fan be brought to trial and finished before
summer.
other counsel for Mr.. Hearst yesterday OBJ
4s,ned from Justice Slower. in the Supreme
court an order directing the Board OF Canvass
prs 10 show cause why they should not compel
insnectors of election in twenty-nine election
districts to appear and correct alleged errors in
their returns Justice Slower declined to make
The order returnable yesterday afternoon. He
made the order returnable Monday. but said
n the lawyers could reach agreement with
en8osine counsel he would hear argument to-
day.
Navnr McClellan's counsel have told him
TO- Dt
-. receiving his certificate of election and TAX
to the oath of Office on January l. The Mayor
Aas not been able to do much in the way OF
s.Isc+,ng his heads of departments on account
= re uncertainty over the contest His friends
.-s confident that any legal action brought by
~ Hearst will not avail In unseatfng the
Mayor.
The Mcclellan men do not expect that the
rresrst men viii Quit but they expect TO make
tbe fight long and expensive and they believe
that by the end of the next three months Mr.
Hearst viii be ready to announce that the con-
test win not be continued.
William NJ WINS. commenting yesterday on
the decision of the Court of Appeals. in reply
To injuries by a Tribune reporter, said:
The net result OF the decision of the majority
of The Court OF Appeals is this: That the cleo
ticn inspectors are public officers, like any
others; that it is a presumption Of law that
when il IS demonstrated that the public officer
has not done his duty the presumption, never
theless is to control the fact and there Is no
way TO compel him TO do his duty until a1ter tHe
mischief to produce which he failed to DO his
duty has occurred
From another point Of view. the effect OF the
decision is that it is so much more important TO
have any kind of an election than to have a fair
election that we must accept the kind OF election
that the election inspectors give US; that is 10
say that our electoral machinery does not exist
primarily to enable the people 10 express their
Will but to enable the election inspectors to
certify how they have expressed It, ana that tne
certificate right or wrong, is a practical unanty,
even though it be demonstrated that the in
spectors either failed wholly to do their duty or
did it with a deliberate fraudulent purpose.
From still another point Of view. the decision
of the Court of Appeals is TO the effect that 1t is
better TO confirm the wrongful acts Of inspectors
by giving the certificate Of election TO a person
not elected than il is to have any delay IN seat
ing such person In other words that the gooo
Of society demands that an unelected person
should be seated. provided the inspectors certl1y
his election, rather than that there should be
temporary vacancy in the ONCE, ana even thouen
il does not appear that there would be such
vacancy. because non constat all errors might
be corrected before the beginning of the new
term
We all have the greatest possible respect for
the Court of Appeals. not forgetting, however,
that 1t is human, and therefore llapie 10 err
However, what it decides is for the time being
law, and that's the end of it. But it does appear
10 some that in this case the court has assumed
the legislative as well as the judicial function.
Il says:
This case is important not so much because
Of the question of which candidate is entitled
10 the particular Office as because OF the prln-
cple to be declared in the construction OF our
law regarding elections to public office
Now If the Court OF Appeals is to apply such
principles it describes, it is little material
EhaS the legislature may say or do. because the
new law viii be construed in conformity with
the ,ld principle. This is making the Court OF
Appeals. and not the legislature, the final judge
OF public policy. The court was called upon TO
eonstrue the law, but it was not called upon to
declare a principle higher than the law and
beyond the law. according to which the law was
TO be construed; that is TO say, principle or
public policy which the Court of Appeals Writ
ually finds to be this: The entire machinery OF
election is only a means for getting as far as
the certificate Of an inspector The certificate
is the primary, the viii of the people the sec
ondary, fact
Ex-Judge William n. Cohen who is chairman
Of a committee working for ballot reform. said
yesterday:
II is apparent that there must be change in
the Election law. IN view Of the decision of the
Court Of Appeals, to permit Of correction OF
frauds in the counting of the votes. AS 1t is
noT, body of unframed election officers is
made not only the court of review. but also
he court Of last resort in the counting of the
pailots. group Of such election officers can
give any decision it likes void ballots. seal the
ballots in the box after the count and make IL
impossible to have any change in the return, no
y