New-York tribune., 1907-11-20
RECOUNT LAW INVALID.
QUO W4RRANTO Il REMEDY
Court of appeals Holds Legislative
4ct Unconstitutional.


cannot attack the validity OF George B. McCIel-
lan's election in November 1903. to the office
of Mayor of New York dnder the provisions of
the so-called recount law passed by the Legis=-
ldture last winter The Court of Appeals this
afternoon unanimously declared the act uncon-
stitutional, but in its opinion points out that
Hearst has still a sufficient remedy in the quo
warranto suit now pending.
The court finds the act unconstitutional on
three grounds
First-In that it provided for an original can
vass of the ballots cast at the 1908 election by
others than the bipartisan boards of canvassers
prescribed by Article VI of Section of the
constitution.
Second-In that a judicial determination of
title to Office it fails to accord Mcclellan his
constitutional rights TO trial by jury.
Third-In that it implies the right of the
Legislature TO legslate man into office.
Chief Judge Cullen writes the opinion. which
| is vouminous. with the concurrence of the other
judges who sat in the Case-Judges O'Brien. Z.
T. Bartlett. Haight. Vann, Hiscock and Chase
The case came up on appeals from orders o:
the Appellate Division in the 1st and I'd
departments both Of which upheld the law
though the judges in the 1st Department. even
while formally sustaining the act. declared
their belief that it unconstitutional. re-
framing from so adjudgng in their decision.
however, because they deemed it inexpedient 70
send 10 the highest court conflicting judgments
from coordinate courts. The Court Of Appeals
reversed both judgments. orders the issue of
writs of prohibition in both cases. with costs
to Mcclellan in both courts but IN one proceed
ing only.
Judge Cullen in his opinion declares that ''the
statute clearly contravenes the constitution
in one or two respects as to render it unques-
MI
he says. either IS as its title indicates. a re-
canvass of the votes cast for the office of Mayor
or Is judicial hearing and determination of the
title of the respective candidates at that cleo
ton 70 the office Of Mayor" It is unnecessary
TO determine which. he adds. because "if It is
a recanvass II contravenes Section of Article
. of the constitution. which provides: All laws
creating. regulating affecting boards of Off
GERS charged with the duty of registering voters
or of distributing ballots at the polls TO voters.
or of receiving recording or counting votes at
elections. shall secure equal representation of
the two political parties which at the general
election next preceding that for which such
boards or officers are to serve cast the highest
and the next highest number of votes IT, on
the other hand it Is a judicial determination OF
the title 10 office II contravenes Section :. Article
of the constitution. which provides: The trial
bv Jury in all cases In which it has been here
tofore used shall remain inviolate forever That
the courts by whom the recanvass IS to be made
are not bipartisan bodies is apparent, and that
the statutes provide for no determination by
Jury of the disputed issues of fact Is equally
clear. Here we may we'll rest. and it is neces-
sar,, 10 consider only the arguments adduced to
Withdraw the statute from both these constitu-
tional limitations
After discussing the measure of review per
yrttted bv the existing law the validity of which
in this regard the court believes cannot be sue
cessfully challenged, Judge Cullen goes on to
say:
statute will show how widely the scheme pro
vided by il differs from any review or control
the courts have ever exercised over a board of
canvassers. BY this statute an absolutely new
canvass is to be made proceeding from the very
initial STEP that of counting the votes in the
boxes The title of the statute we'll describes
the proceeding as a recount and recanVass"
The effect of the proceeding is may be to
give a certificate of election to another person
than him whom the original canvass showed to
be elected. The Legislature can more au-
thorize a recount and recanvass by other than
a bipartisan board. the result TO act as a sub
stitute for that Of the original canvass, than IL
can authorize a count and canvass to be made
in the first instance by other than bipartisan
board.
The court finds serious difficulties in treat
ing the proceeding as a judicial one to deter
mine title to Office. Judge Cullen adds;
What does the statute direct the court to do
after the receipt of the petition? There is no
provision for any answer TO the petition. nor. If
its allegations be denied. for any hearing
the issues raised by such denial There is no
provision for the examination of witnesses as
to the identity of the ballots and their preserva
ton nor on any other question of fact that
might arise But the fatal objection to the con-
stitutionality of the statute, regarded from
Continued third page