New-York tribune., 1907-07-18
RECOUNT FIGHT In MIX.
TWO ADVERSE RULINGS,
appellate DirisiOn, 1st Dept, Op-
poses Same Court of I'd Dent

constitutional the decision being unanimous.
The Appellate Division of the Second Depart
1nent in Brooklyn decided on Tuesday by a vote
OF three 70 two that the act was constitutional
Although unanimously declaring the belief
that the act unconstitutional the court sitting
IN Manhattan declined TO issue the writ of pro-
hibition asked for by Mayor Mcclellan on ac-
count OF the contrary decision of the Brooklyn
court. The Manhattan court announced that the
case would nave to go 10 the Court Of Appeals
for settlement and in the mean while issued a
stay OF proceedings.
This made in spite of the objections of
Clarence J. Shearn, counsel for William r.
Hearst, who said that in the circumstances
stay was equivalent to a prohibtory writ.
The friends Of Mayor Mcclellan were greatly
elated yesterday over the decision of the APP
pel.ate bench Of the First Department. The Mayor
was at the City Hall when he heard the news
lie looked much pleased, hut would not COM
ment on the decision. He leaves town to-day
for a months vacation.
There is change in the intention of the
Mayor and his friends TO continue TO oppose the
attempt OF Mr. Hearst for a recount OF the bal
lots cast in the Mayoralty election in 1905. II
IS known that if the Court of Appeals should
not sustain the First Department decision
eEor: viii be made carry the matter TO the
United States Supreme Court on a question Of
constitutional personal rights. the Mayor and
his friends insisting that the certificate OF cleo
ZION is conclusive evidence that the Mayors title
10 his Office is valid. and that II is too late TO
prove the contrary. inasmuch some Of the
ballot boxes were broken open when they
left unguarded IN the street in front Of the office
of the bureau of elections after being deposited
there in the nighttime. This Is only one Of the
many points raised by the Mayor and his friends
II their arguments.
ABSOLUTE DECISION HELD UP.
The decision was on the question of whether
a temporary writ issued on Monday, directed to
Justice Dayton. all other justices OF the Supreme
Court not sitting in the Appalate Division and
Clarence J. Shearn, as counsel for Mr.. Hearst,
forhidding them 10 take any action under the
law providing for recount Of the 1893 vote,
should he made permanent.
Justice Ingraham. in announcing the decision
Of the court that the law was unconstitutional
added that. IN difference 10 the opinion reached
by the Appellate Division in the Second Depart
Inent, absolute decision in the matter would not
be made until the Court Of Appeals had passed
on that decision. He said also that the court
was ready to hear suggestions and opinions OF
counsel present in court. In the mean time,
however, he said that il had been decided TO
grant q stay in the proceeding in the First De-
partment, pending the action Of the Court Of
Appeals.
NJ. Shearn objected vigorously 10 this, saying
hat Il vas rantamounI 10 the granting Of a writ
doubt Of the competence Of the court 10 issue
such q writ when there was another remedy.
Eugene Lamb Richards, appearing for the
Mavor personally. contended that the court was
competent 10 issue such q writ in the circum-
stances but added that the point had not been
raised in the other department.
Considerable argument was heard this
point Francis r Pendleton. the Corporation
Counsel. supporting Mr.. Richards. The court
announced that il was uncertain as TO its power
in the matter, and took a recess After the
recess the stay was granted but the writ was
denied
Mr. Shearn. in a long argument, pleaded that
the operation Of the recount law should not be
blocked by a stay. Aside from the doubt as TO
the power Of the court 10 grant such stay SAID
Mr Shearn, there is every reason TO hasten the
recount OF the votes. He expressed his regret
al the failure Of the court 70 agree with the
opinion Of the Appellate Division in Brooklyn,
which had, he said, given two weeks OF care
ful consideration TO the matter, and added that
the whole recount could be accomplished IN
sixty days As a point he added that the courts
being in recess the rooms Of the courthouse
could be used for the recount. whereas II the
stay were granted, nothing could be done until
November when the courts would be II session
and crowded with other business.
URGES PUBLIC OPINION IN ARGUMENT.
Mr. Shearn said that questions OF public pol
icy, connected with the opinions Of many per
sons that there had been injustice 10 his
client IN the 1903 election, demanded that there
be 10 delay in the recount. While THIS, ne sa4o'
could not affect the questions Of law nVoIVed'
he felt il might properly affect the court IA
the exercise Of discretionary power He con-
tended that public opinion had already hau con-
siderable effect upon all branches OF the state
government, in inducing the acton eliminating
In the passage and signature OF the recount
measure.
The refusal Of Attorney General Mayer sald
Er. Shearn to sanction quo warranto proceeu-
ngs had resulted in the election or ne" AtIoI-
ney General and a new Governor thus iLahhs
Dir. Mayer responsible for the elecuon oi ~
eYnor Hughes and Mr.. Jackson Mr. Shearh uu
not eyrlaiD 10 the court how these effects were
produced. contenting himself with the simple
statement Of fact"
The counsel drew denials from the bench When
he remarked that the stay would be pia1'i'"4
veto by the court upon the recount measure
Then he turned to the question Of expense say
ng tha+ the expense Of the recount "ou4d De-
relatively very small. He asserted, IL reply
to a question by Justice Houghton that the
Proceedings would require no stenographers'
and that the expense would practcaLy De nm
ited 70 the SO a day fees Of the commissioners
appointed by the Supreme Court to count the
ballots He could sec no possible heeo Ior
stenographers 70 take down objections unless
there was deliberfte delay. and believed that
speedy reference 10 the court would check sCcA
tactics Then he said: But suppose II dld cost
$4,000, or even $4,000. that is not to be con-
sdered beside the public interest
Justice Hougfton was stlI uncohVlhced' anu
Pointed out that many references cost $4,000 or
more Then Mr.. Shearn said that the surety
company that provided Mr. Hearsts unlimited
bond for the costs Of the proceeding had charged
the premium on a $4,000 bond only, after care
ful investigation
Going back to the question OF the Ilght OF
the court 10 issue stay, Mr.. Shearn cited lhe
t. AaT 81 Il