New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-12-08
TIE pBoBLEn OFF A RECOUNT.

The Appellate Division gives a decision IN
favor of Mr.. Hearst and an opinion In faVcE OF
Mr. Mcclellan. That, IN q nutshell. is the result
Of IFS deliberations on the question Of opening
the ballot boxes. The judges feel bound by a
previous dictum Of the Court Of Appeals and by
decision in the Second Department following
that authority, but they think the principle thus
enforced upon them a wrong one and squaFeIy
invite the Court of Appeals TO reverse them. Mr..
Hearst's contention that opening the ballot boxes
10 correct q miscount involved a recanVass IN
which the validity Of any ballot could be raised,
as on election night, and any errors negllgenty
or frauduentIy made in counting VOID DalIots
could be corrected is sustained. There seems to
be no difference of opinion on this point II an
election board is reconvened, it must do It's work
over again as from the beginning and make
true return regardless Of previous mistakes. JUS
tee Amend ordered some boards to reconvene,
and that order is upheld as in harmony with con-
trolling precedent, though the appellate judges
think they should not be reconvened, but that
the original count should be final In spite of its
errors. AS the operation Of the decision in favor
Of Mr. Hearst is stayed pending appeal and
reversal is invited It cannot be said that his VIC
tory is Of practical advantage.
The point raised by this curious finding is one
admitting an honest difference Of opinion Is 1t
more important to secure an honest and correct
NNAANA
have the result of an election promptly and
finally determined subject to such errors or
frauds as reasonable safeguards do not succeed
in preventing? A strong argument can be made
on either side It is unquestionably true that
public policy demands a limitation of election
controversy The title to offices must be estab-
lished promptly and beyond question. Public
tranquility and the transaction of official bust
ness require that at a certain point the matter
4, Ie IHaoIT Nv
right or wrong The law provides ample means
for contestants to watch the casting of the bal
lots and the count If the watchers do their
duty, a correct return may be confidently relied
upon. together with the transmission of any
doubtful ballots to the Board of County Can
vassers to be passed upon by competent authority,
If they do not do their duty, if they are incom-
petent or sell out, it may be argued it is their
own fault and the misfortune of their principal.
If they are prevented by force from doing their
duty, or their lawful protests are disregarded by
the inspectors the criminal law provides pen
atty sufficient to prevent such fraud from be-
coming habitual, and even the doctrine of the
Appellate Division would probably permit the
returns to be freed from the results of such de
family lawless acts. These provisions may not
secure absolute correctness, but with them the
will of the people will be determined with sub
stant1al accuracy, while nothing viii be allowed
10 block the wheels OF government
On the other hand. 1t may be said that public
policy forbds the seating of any officer by legal
technicalities when the facts are clearly in evi-
dence that he was not elected. A limit to con-
troversy may be set and substantial proof of
error or fraud required: but success in getting a
wrong canvass put on record amid the confu-
sion of election night should not be final The
county canvassers should declare the result in
accordance with equity. Even if the candidates
had their chance at the original count, theirs is
not the principal interest involved. The people
are entitled TO a correct declaration of their vote
and TO the rectifcation Of any errors and frauds
which are proved while the canvass is in prog
ress. Formerly the difficulties of rectifcation
were almost insuperable. Ballots were not Of
fetal, and a recount was lis likely to be wrong
as the original canvass, because clever triCkery
could stuff the box with ballots indistingUishable
from those cast The present law provides an
official ballot which cannot easily be counter
feited. Stuf1ng or substitution is almost impOs-
sible. BY law the ballots are preserved as if for
a possible recount and a recount, if made. can
detect any old errors and Mt the same time is
fairly safe from the making of other new ones.
The tendency of legislation and Of judicial de-
cison has been steadily in the direction of get
ting at the truth and overcoming the former diff
cultieS which made acceptance of q moderate de
gree of falsehood expedient. To-day a degree
of correctness can be secured which years ago
could not be hoped for and those who plead that
the courts should not fail to assure it. out of
to doctrines sprung from cruder condi-
tons of election machinery. make most
persuasive argument.
This is the problem which the Court of APP
peaIs must wrestle with 1t is one of the most
important brought before the court In a long
time. for In the end 1t must determine the work
ing of our whole election system and the methods
which must be taken to safeguard the suffrage
against fraud