New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1905-12-12
ARGUE BALLOT Box CASE.
BLACK AGAINST Parker.
Austen @. For adds Spice to Dry
Legal Discussion.


chief city on this continent was presented in
the Court of Appeals this afternoon. when argu-
nent was begun IN the so-called New-1ork pal
lot box case There was a large attendance OF
lawyers and spectators.
The contest represents the contention OF
William Randolph Hearst, John Ford and J. u
Phelps Stokes Municipal Ownership canal
dates that at the election of November they
were rightfully elected to the offices OF Mayor
Controller and President of the Board Of Alder
men of New-York City, and that this will be
shown nv a recount of the votes. Ex-Governor
Frank s Black and Austen G. Fox. assisted by
Clarence J. Shearn. appeared for the Hearst
side; ex-Chief Judge Alton B. Parker, Corpora
ton Counsel John ]. Deany and Assistant Cor
poration Counsel Arthur c. Butts represented
the claims Of Mayor Mcclellan and his Demo-
cratic colleagues to the election.
The question comes before the court on an
appeal from a decision of the Appellate Division.
First Department, which affirmed order di-
recting the issue Of mandamus for recount
and recanvass Of the vote cast in the I'd Elec-
ton District of the I'd Assembly District Of
New-York City. The original order Of the Su-
prerne Court directed a recount and a recanvass.
This was subsequently changed. to provide for
recount without a recanvass. The Appellate Di-
vision changed 1t to its original form, following
a precedent laid down by the Appellate Division
of the Second Department IN q contest LUZ lIAS
nayoralty Of Mount Vernon in 1901
FULL BENCH CONSIDERS CASE,
Argument was begun at p m, and ended at
z:30 It is believed that a decision will be rem
dered this week. because Of the Importance OF
q prompt settlement of the controversy so that
the rightfuIly elected mayor may be installed
January L All seven judges sat in the case
. Three main propositions were made by the
appellants in opposition to Mr.. Hearst's conten-
ton that a recount and recanvass should be
ordered, as follows:
First that the election law fails to authorize
the courts to issue a common law writ Of man.
damus compelling board OF election inspectors
TO recount and recanvass the vote after having
submitted a final return. Second. that sucn
course would be against public policy because
OF the possibilities of delays confusion and end
less litigation in deciding elections. and third,
that the respondents already have sufficient
remedy available in the form Of quo warranto
proceedings to test the title of officers in con-
tested positions
The contention of the Hearst attorneys was
that the ascertainment of the peoples will in an
election was more important than speed, and
that the evils predicted by the appellants were
largely imaginary. They also held that an cleo
ton law did not specifically call for recount
when the count already made was shown to be
incorrect
An opinion written by Mr.. Parker himself
when Chief Judge Of this court, in an Ulster
County election case involving the office OF su-
pervisor in which a recount OF ballots was
ordered was used by the attorneys for Mr.
F5sarst in behalf Of their contention. Judge
Parker. in reply. argued that this decision
should not bind the court. since the points at
issue we're not entirely the same in the two
cases.
INTEREST ADDED TO DISCUSSION.
4 spicy incident added interest to the other
wise rather dry legal discussion. Austen G. Fox.
in his argument for the Hearst side, referred
somewhat sarcasticaIly to Mr.. Parker's position
s in view Of his opinion in the Brink case. He
suggested that it opened up possibilities of a
new industry for retired judges to appear be
fore courts in the effort Ito induce their intel
lectuaI brethren to recede from positions already
taken on questions OF law. Mr.. Fox said:
Nay, more than that. may 1t please your
honors, in regard to this particular so-caled
dictum Of this court. which made on the
eve Of a Presidential election and in the result
of which the judge who wrote it was not en-
tirely disinterested."-
Chief Judge Cullen. interrupting-Had not
you better keep TO Your case?
Mr.. Fox| keeping to the case.
Judge Cullen hardly think So
Mr.. Fox-I keeping TO the case, II your
honor will excuse me. and after my next SEN
tence you will agree with me. 1 say it was a
matter in which all who deal with election
matters. and especially members Of the legisla-
tuTe.- were particularly interested Your honof
did not catch the import of my remark. say
when this court declares a legislative purpose
in regard to election cases, and then session
of the legislature passes, and the legislature not
only makes. no change, but that continues Tor
eight years then your honor sees it is Of very
serious import.
Chief Judge Cullen-I appreciate the bearing
of that, but what you said first had no rel
eyancy.
MI Fox-As long as your honor sees what
I had IN mind. quite satisfied
Judge Parker, at the close of the argument
referred to comment of opposing counsel that
he had not, in the courts below, raised the ques-
ton OF powerlessness Of the courts to direct a
rnandanus in such cases. and declared that in
this court of final jurisdiction he felt he had
ample right to raise questions which were not
called for in his arguments below.
PARKER OPENS FOR APPELLANTS.
The argument was opened by Mr.. Parker for
the appellants He contended that there is moth
ing to be found In Section 81 of the Election
law which in terms authorizes the court to di-
rect either a recount a recanvass of the vote
A recount cannot be ordered. even though dis
crepancies exist between the tally sheet and
the ballot clerks return. He held that Section
81 required that the recount shall be finally
made by the inspectors On the night Of election.
and that, II an actual mistake was made. it
was the duty of the inspectors then and there
20 make a recount If the failure to recount
as provided in Section 81 might be enforced by
1nandamus after the ballots had been placed in
the box and it was locked and sealed. he asked,
why might not every act or omission be en-
forced by mandamus? The statute did not
authorize mandamuS other omissions, and
the court had held in the Brink case that it
could not take jurisdiction not accorded to it by