New-York tribune., 1907-06-27
MAYOR HALTS RECOUNT
WRIT OF PROHIBITION
argument Begins Friday on Bills
COnStitutiOnaLity.

lale Division, Second Department a writ of pro-
hibition forbidding ali justices of the Supreme
court from acting under the provisions of the
new recount bill. The order is returnable on
friday afternoon. at which time argument will
begin designed to test the constitutionalitv NJ
the recount bill
William b. Crowen Assistant Cornora+io,
Counsel, represented Mr. Ellison and the Law
Department Mr.. Ellison appears for the Con-
troler as a taxpayer. and for the Board of Elec-
lions. Eugene Lamb Richards apneared haforo
Justice jerks yesterday for George B. Mcclellan
Mayor.
A writ of prohibition is seldom granted When
issued it usually is to meet grave ppbIic eroer
gency.
clarence j. Shearn. representing William R.
Hearst made application on Monday to JUS
tlce Maddox. in Brooklyn, for the appointment Of
commissioners TO begin a recount He at Tho
same time filed for Mr.. Hearst bond in unlin-
lted amount guaranteeing the CITY from loss
should Mr.. Hearst lose his case The friends of
Mayor Mcclellan said yesterday that the pro-
ceeding was begun in Brooklyn first because
Justice Mccall was sitting in Special Term in
Manhattan, and that there was some doubt
about Justice McCalPs granting an order for the
beginning OF the recount. The Mcclellan men
SAID that Justice Dayton. who begins sitting in
men last fall. 1t was learned that Mr. Shearn
would make application to-day to Justice Day
ton for the appointment Of commissioners as
had been done before Justice Maddox.
The Corporation Counsel's Office turned in an
argument to Justice jerks yesterday signed by
the Controller as taxpayer. Mr.. Metx says that
the recount bill is likely to involve the city in
great and needless expense and that on that ac-
count the recount should be prohibited
The papers submitted by Corporation Counsel
Ellison and 5Ir. Richards cover about one hum
dred typewriter pages. and among other points
raised is one which contends that the recount
bill. while practically local bill. legally relates
TO cities OF the first class, OF which there are
two in the state-New York and Buffalo. 1t is
argued that the bill was not submitted to the
Mayor OF Buffalo. should have been done
Various points are raised in Mr.. Ellison's brief
asking for writ OF prohibition. He alleges that
the recount bill is violation Of both the federal
and state constitutions, and that II IS contrary
TO public policy. He holds that il violates the
Fourteenth Amendment of the Federal Constitu-
ton In that II oeprives the residents Of the city
of New York OF their property without due proc
ess OF law; that il deprives George B. McClel-
Ian Of his property without due process of law;
that IL abridges the rights Of the United States
Supreme Court and takes away from the power
Of Congress.
The brief submitted by Mr. Richards In behalf
OF Mayor Mcclellan a citizen sets forth
follows:
That the new law deprives Mayor Mcclellan
OF his rights and privileges who has
right TO have HIS title adJudicated by a jury OF
his peers; that IL deprives Mayor Nc
Clellan Of his property without due process
Of law; that It violates Section 6. Article l.
in that IL confscates and puts in jeopardy the
rights and property OF said Mcclellan heretofore
established by law: that IL disqualihes citizens
from having due force and effect given their
votes; that It violates the provisions of Article
2, Section g. tn that II provides for a recount
OF the vote by commissioners instead OF by The
regularly designated officers Of the law; that IL
violates Section g. Article 2, Of the state
stitution. in that IL does not direct the employ
ment OF the election board; that II violates
Section !, Article 3, IN that the commissioners
10 be appointed interfere with the legal powers
Of the Legislature and Senate OF the state; that
II violates Section I6. Article 3, in that the
act is practically q local bill which embraces
more than subject; that 1t violates Sub
division u, Article 3, in that IT grants in local
bin exclusive privileges to an unsuccessful can
didate for the Office Of Mayor; that it violates
Section p. Article 3, in that il provides for
the imposition Of a tax and does not distinctly
state the amount of the tax, but leaves il to the
discretion of the candidate for Mayor 20 fix said
tax; that II violates Section ], Article g. in that
il imposes on the Supreme Court a n-judicial
function; that it violates Section i, Article q,
in that II abTidges the Jurisdiction OF the Su-
preme Court in quo warranto proceedings now
pending; that It violates Section l, Article g. IN
that il deprives the court of the exercise Of its
rights and privileges to conduct business accord
ing 10 regular usages; that 1t violates Section
=, Article ., IN tnBt OepIlNeS lne Appellate
Division Of Jurisdiction guaranteed by the con-
stitutiOn.
The argument goes TO say that ANY pro-
ceedng under this law VIII cause irrepaTable
loss 10 the deponent": that II is act of oppres
sion and injury and harmful TO the voters Of the
city: that II violates and interferes with de-
ponent's rights citizen Of the city; that
there are only two cities OF the first class in the
state and that said act was not submitted TO the
Mayor OF Buffalo as required by law; that while
Fl is called a law It IS special legislation and
applicable to New York only and only in name
a general act: and that It directs the court how
10 proceed and compels the appointment Of a
referee without the consent Of either party. The
Mcclellan brief also cites the quo warranto pro-
ceedipgs and says that II the act goes into
effect there VIII be two recount proceedings on
at the same time; also that deponent will not
waive bis constitutional right of trial by jury.
OF such right.
Together with other papers is one by Victor
Speer. secretary TO the Mayor of Buffalo, alleg-
ing that the bill not submitted TO the Mayor
OF that city
Mr.. Richards for the Mayor, argues that II
viii take sixty days 70 get ready for the recount
and that the actual canvass OF the votes would
take one judge five years or ten Judges six
months working all the time to the exclusion Of
all other business. It is further contended that
q the canvass begins September 1 II Will
occupy the time of ten Supreme Court justices
and that later appeals will prolong the contest
Indefinitely