Evening star. [volume] (Washington, D.C.) 1854-1972, 1906-12-22
HEARST ASKS RECOUNT
Counsel Requests Appellate
Division to Save Ballots.
WILL RELY ON JACKSON
New Attorney General Expects to
Grant Quo Warranto Proceedings.
MAY MEAN MAYORALTY FIGHT
Clarence ]. Shearn Tells Court That
No Rights of Mcclellan Will
Be Imperiled.
WILL RELY ON JACKSON
MAY MEAN MAYORALTY FIGHT

NEW YORK, December 22.-With a new
legislature at Albany and an Independence
League candidate elected to the Office of
attorney general William r. Hearst will
move anew for recount of the mayoralty
vote of 1905. either through legislative en-
actment or through quo warranto proceed
ings. This much was admitted by his
counsel, who appeared before the appellate
division of the supreme court yesterday and
made an urgent plea that the ballots cast
in the contested municipal election Of last
year should be preserved inviolate for the
present.
Bills were introduced in both houses of
the last legislature providing for a
count of the vote after the court of appeals
had held that the ballot boxes could not be
opened under the provisions Of the present
law except in quo warranto proceedings.
The measure was favorably reported by
both the senate and assembly committees
on the judiciary when Attorney General
Mayer, in response to an Interrogation from
the legislature, declared that Mr.. Hearst
had ready remedy in quo warranto pro-
ceedings. When counsel applied for per-
mission to begin such proceedings to At
torney General Mayer he denied the appli-
cation. Thus Mr.. Hearst's chances for a
recount were blocked for the time being 1t
10 lilouSnt, HOWeNeT, tIldl Within n. JOCK
son, the new attorney general, who was
nominated and elected largely through the
efforts of the Independence League, is in
favor of granting petition for quo war
ranto proceedings.
Before Appellate Division.
The matter came before the appellate
division in the form of an appeal brought
on behalf of Mayor Mcclellan from an or
der of Justice Mclean of the supreme
court ordering that the ballots be pre-
served. Assistant Corporation Counsel
Arthur c. Butts appeared as Mayor Nc
Clellans counsel.
Mr.. Butts said that Mayor Mcclellan,
while nominaly the applicant was not
really party at interest, the real party
elections. Justice Laughlin, presiding,
asked why then the. board of elections
did not appear. and what public interest
could be served by vacating the order.
I'VE maintain" replied Mr. Butts, that
the title of mayor must not be attacked
indirectly in wantOn manner. and this mat
ter be kept going so long. Mr.. Hearst
assured the people that he would depend
upon his success or failure in passing a
recount bill. but he has nevertheless kept
up this agitation in the courts
Toward the end of Mr. Butts argument
Justice Clarke asked why. If the mayor
was not party at interest the time of
the court was taken up by academic
question.
I'VE have enough real business in this
court" said the Justice
Mr.. Butts replied that he thought the
indirect attacks on the mayors title ought
to cease
Two Sets of Ballot Boxes.
Justice Scott asked if there were a suffi-
Client number of ballot boxes without those
that are sealed up with the 1905 ballots
in them. Mr.. Butts said there were two
sets of ballot boxes but he said again
that he thought the mayors title should
not be attacked by Mr.. Hearst in the man
ner it has been attacked in the Hearst
papers and through various court proceed
ingS
Clarence ]. Shearn. who appeared for
Mr.. Hearst, said. in part:
'Snce the order appealed from was
tered, the primary election for which the
boxes were then wanted has been held.
The occasion for which the boxes were
ostensibly wanted is past. Moreover, not
only has the primary election been held,
but since then the general election has been
held. and there will be no call for the use
of many ballot boxes until November, 1907.
Although the occasion for the destruc-
ton of the ballots has passed Mr.. McClel-
Ian, not in representative capacity, but
personally and individually, since the cleo
ton of the legislature and the new
attorney general has noticed for argument
an appeal from the order denying his mo-
ton to destroy the ballots. Using the
city lawyers DIS HIS private attorney, lie
has put the city to the expense of printing
a record of 102 pages in order to accomplish
the end the only possible, practical result
of which is to obliterate the evidence, which
If submitted to judicial scrutiny might dis
close that he is holding on to stolen
office.
What rights of Mcclellan are imperied
by the preservation of the ballots? True,
they imperil his continuance in office, but
he has no right to the office unless he was
elected to it, If he was elected the pres
| ervation of the ballots would not jeopar-
| die his office They only imperil his office
| in case he was not elected"
! The court reserved decision.