The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-07-18
HOLD The RECOUNT BILL VOID
APPELLATE DIVISION IN THIS
DISTRICT rs UNANIMOUS.

All Proceedings stayed Until the Court
OF Appeals Passes on the Act-Scven
Justices So Far Arrayed Against
Justices Hooker. GaynOr and Rich.
The Appellate Division Of the Supreme
Court in this. the First. judicial Depart
ment. differs widely and unanimously from
Justices Hooker. Gaynor and Rich. the ma
jority Of tho Appellate Division Of the SEQ
! ond Department. as to the constitutionality
OF the Hearst recount bill. and nays IL is
unconstitutional. All proceedings under
the bill are now stayed until thu Court
OF Appeals passes on It. the Appellate Divi-
sions Of the two departments standing
meanwhile 7 10 8 against the bill.
Justices ~Ingraham. Mclaughlin. Clarke.
Houghton and Lambert handed down a
decision per curion yesterday to the effect
that while they are all Of the opinion that
the bill Ia unconstitutional they feel con-
strained to follow the previous decision
! Of the Brooklyn, court and dismiss the writ
of prohibition obtained by Comptroller
Metz and Mayor Mcclellan restraining
the Justices Of the Supreme Court from
taking any steps under the act. But while
| they dismissed the writ they granted a
stay pending an appeal by Mcclellan to
| the Court Of Appeals. This appeal must
be made within ten days, but when it will
be heard and, decided 10 another question.
1t may be four.monfhs or the Albany Judges
may hold a special session and render q
decision within a few weeks. Notice OF
appeal from the Brooklyn decision was
served yesterday.
The application 10 make the. temporary
writ Of prohibition permanent came be-
fore the court yesterday morning. Cor
poration Counsel Pendleton and Eugene
L. Richards appearing for the Mayor and
the Comptroller and Clarence j. Shearn
for Hearst.
The briefs fled by both sides were volum-
nous. and a long argument was expected.
but at the outset Justice Ingraham an
nounoed that the court was Unanimously
Of the opinion that the recount bill con-
tanned grave constitutional defects. Justice
Clarke repeated this. and Justice Lngraham
then suggested that the argument be con-
fined TO the application for a stay and TO
the legality of the writ of prohibition as a
remedy. There was some argument and
after a few hours recess the opinion wa
handed down. II reads in part as follows:
We are unanimously Of the opinion that
this act violates several provisions OF the
Constitution. among others those discussed
by the dissenting opinion meaning the opin-
ions Of Justices jerks and Miller Of the Sec
ond Department.. with which We concur, as
devolvtng upon the Supreme Court purely
administrative or ministerial duties.
The Court discusses at some length the
propriety of the writ of prohibition and
hnds that il is a proper remedy because
no appeal to the Court OF Appeals is pro-
vided in the act and the oonstitutionality
Of the law can therefore not be tested under
the act. The Court says also:
The question presented is one Of the jurts-
diction of the Supreme Court 10 entertain
the respondents application. II this act
Ia a valid exercise Of the legislative power
the duty is imposed upon the court OF enter
tanning the application. IL the act Is void
as violating the Constitution the Supreme
Court has no jurisdiction Of the proceeding.
The question presented. therefore, relates
exclusively to the jurisdiction OF the Su-
preme Court. and where a court Ia proceed
ing without jurisdiction prohibition has
always been held. 20 be the proper way to
restrain such unwarrsnted action.
The right OF the court to stay proceedings
Ia expressly authorized by Sections 2I0l and
2IO2 of the Code Of Civil Procedure. And
considering the serious effect upon the ad-
ministration OF justice In this department.
which will inevitably follow upon the proper
performance OF the duties thrust upon the
Supreme Court by this act. and the large
expense which will be imposed upon the
city Of New York, and entertaining the views
before expressed, We think that the order
denying the application should contain a
provision by which all proceedings under
the act are stayed pending the determine
ton by the Court Of Appeals of the question
as TO the constitutionality Of the act. upon
condition. however, that the REALTORS appeal
from the order entered upon this application
within ten days from its entry:
- $500 l.