New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1907-07-17
RECOUNT LAW UPHELD.
Division Refuses to Con-
tinue Writ of Prohibition.

William r. Hearst scores point In his contest
with Mayor Mcclellan over the recounting of the
ballots cast in the election of 1905 through deci
sion handed down yesterday by the Appellate Dr.
vision Of the Supreme Court, in Brooklyn. The de-
cision, representing three to two division of the
court, denies the Mayors supporters the continu-
ance of the writ Of prohibition which Justice jerks,
of the Appellate Division issued the day before the
Supreme Court hear Mr.. Hearsts petition
for recount in Kings and Richmond, and stopped
all further proceedings.
The writ was procured several weeks ago by Nc
Clellan as citizen and taxpayer: Herman A. Metz,
as Controller and John T Dooling. president OF the
Board OF Elections. which issued Mayor McCeIlans
certificate OF election.
A full court listened to the argument to make
the writ permanent. William B. Ellison. Cor
poration Counsel then. and Eugene l. Richards.
the Mayors personal counsel, upheld the
tnuance Of the writ. while Clarence ]. Shearn ap-
peared for Mr. Hearst.
The decision yesterday supported by JUS
tees Gaynor, Rich and Hooker, while Justices
jerks and Miller opposed In ALL four decisions
were written. Justice Hooker alone ending his
consideration OF the case with his vote In the
afternoon after the decision made public. Mr.
richards appeared before Justice jerks and asked
Tor an order for Mr. Hearst to show cause on
July 70 why Mr.. Mcclellan should be per-
nlitted to carry the decision up the Court of
1nppe1IS Ior review. lie also wanted stay pend
ing the appeal. Mr.. Shearn opposed this on the
ground that only full court could issue 1t. Jus
ice jerks said that he would grant the order to
snow cause, but could not allow the stay.
justice Gaynors decision maintains the con-
Sututionality Of the recount law. the basis Of the
elure contention over the writ of prohibition
II the law simply provided that the ballots should
De turned over TO the Supreme Court for recount
ana certhcation without a hearing It would re-
qulre the performance Of mere ministerial and not
judicial work-which by the structure of our gov
eminent belonged to the executive branch and
might not be performed by the judicial. the
Justice.
But its provisions are very different" he said.
1T provides for judicial hearing and determina-
uon by due process of law. i e, on due notice OF
a contest between candidates for an office for the
certificate Of election and possession OF the office
thefeunder Such a dispute certainly belongs 70
the judicial branch Of government and is referable
to II by the Legislature"
Justice Rich says that the law requires the court
TO exercise It's judicial powers in determining what
condition the ballot boxes in at the close OF
the election He also extraordinarily denies various
arguments of Mayor McClellans supporters.
There be no legal right 10 the possession
NJ office 10 which the occupant has not been
legally elected he said. George B. Mcclellan Is
deprived of his right of having his title TO
Office determined in a quo warranto action by jury
trial He cannot be deprived OF property under
tho statute the Office of Mayor is not property
or a property right within the meaning Of the
There is no judicial power OF review because
there is nothing to reviewthe original returns are
entirely superseded" said Justice jerks In dissent
ing. There parties before the court asking
for judicial action which shall determine the reia-
tive rights of the litGants upon the facts and in
accordance with law expressed in Judgment IN
q decree There is ministerial act Of board or
officers up before the court for review. The pro-
ceeding does not rest upon any complaint Tor
fraud. violation of law statute or dispute which
is not abated long all OF the candidates do
not acquiesce in the count and canvass made
Justice Miller said that IL the act provided for n
judicial review OF prior canvass, 1t was anoma-
lous in that the court could not tudicaly know
what Il to review; If II provided a judicial
trial Of an election for certificate OF cleo
ton. and Il was said 10 assuming FOR the moment
that such a contest could involve anything but ad
ministrative work that the court could be In
troduced into It further than to compel the proper
performance of such work, then the anomaly
presented Of judicial trial. IN which the court did
merely ministerial work. and administrative
board decided what the Judgment should be.