The Bennington evening banner. (Bennington, Vt.) 19??-1961, 1907-07-18
SUPREME COURT
KNOCKS OUT
RECOUNT
II Declares The Law To Be Un-
constitutional
NEW YORK CONTEST OF 1905
Decision OF Court IL Adverse 10
Hearsts Appeal for Recount Of
New York Votes.

NEW YORK. July is.-By n unanl.
nous decision the appellate division
OF the supreme conrt of the FIRST de.
partinent held that the recount law
was unconstitutional At the same
time la order a. be- In conformity with
the appellate division Of the second
department Il denied the application
made by Comptroller Metz. Mayor Me.
Clcllan aud the board Of elections for
a writ Of prohibition enjoining tho SUI
preme court from proceeding 10 recan.
vass the mayoralty vote. The appellate
division, however. granted the REALTORS
stay pending an appeal 60 the court
of appeals. Il being stipulated that
such an appeal must be- taken within
ten days
The decision l. a decision u the en
tire court and l. signed by Justices In
graham. Mclaughlin. Clarke. Hough.
ton aud lambert II hcglns.
We have had an opportunity of ex
aiming the opinion of the appellate
division " the second department IN
an application similar 10 the present.
upon which was presented the question
n the constitutl0unllty ~ chapter SIS
% the laws ~ 1877. upon the dcterfnl.
nation u which this application De.
Ponds We are unanimously ~ the
opinion that this act violates several
provisions u the constitution. among
others those discussed by IN. dissent.
INK opinion. with which We concur. ~
dcyolying upon the supreme court
purely administrative or ministerial
duties. which the constitution provides
shall D. performed by certain officers
10 ~ appointed in pursuance u a.
provisions. A.. however. this act Il
purely LEGAL affecting only the city ~
New York part % Which city l.
within the limits u ca<h of the Judi
cial departments. we think the orderly
administration - iustice requires that
this court should follow the determine.
iinn 81 court ~ coordinate iurisdic
ton. where the same question was pro
scented. so ne o. avoid n conflict 10
tween the two departments affecting
parts ~ the same territory. Therefore
Notwithstanding our Individual opln-
Ions. We will follow the decision ~ the
second department aud deny this ap-
pliratiou"
The decision then refers 10 tho point
raised by Mr. Shcnrn. counsel for WI.
liam a. Hearst. that a writ II pruhibi
ton was not n proper remedy fdr the
court 90 grant IN connection with
this the decision deals with Comptrol
Ter Mrtz's participation In the pro
cecdlngs aud says.
1t Il not apparent how the comp
trollcr OF the city ~ New York. who
Il not n party o. the original proved
ing. under the act. could present nny
application 10 the supreme court lie
certainly would have no right a. move
o. yacatc any order granted under the
provisions ~ this act A. be Il not o.
party 81 this procccdlnr"
The decision then rccapitulatcs the
provisions ~ the recount blll aud adds
The plain intent ~ this act l. that
the proceeding before the court nc sis'
einl term should h. summary and We
think II was the intention ~ the lcgi-
laturc 10 require the court n proc-cd
IN \ summary way 10 the recount aud
.anvnss ~ these votes. confirming the
light 90 review any questions present.
~ % an appeal from the nnal order %
the special term 20 this court. with an
express prohibition ~ any appeal 90
tho court " appeals n would seem.
therefore. that the relatorz have no
remedy by appeal aud that n writ 81
nrnhlhlilnn A. the nrnIanr r.mrANn