Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-01-15
ORDER OF THE JUSTICE
Judge Leventritt Vacates Mandate Is
sued by Judge Hendrick.
THE HEARST RECOUNT MIDDLE
Votes in Mayoralty Contest Go Back
to Possession of Board of Elec-
tions-Lawyers Lose Temper.

NEW YORK, January 15.-After a heated
argument, in which opposing counsel had to
be frequently called to order, Justice Lev
entritt, sitting in special term, Yesterday
afternoon vacated the order granted by
Justice Hendrick of the supreme court a
week ago last night which transferred the
ballot boxes of the election of 1898 with
thelr contents to Attorney General jackson.
The purpose of the original order was to
get into Mr.. Jackson's hands the evidence
upon which will be decided his suit to test
Mayor McClellan's right to his office.
Inc oallot boxes now go back into the
actual custody of the board of elections, in
which they had reposed before Justice
Hendricks order
Justice Leventritt refused to be drawn
into the personal controversy that arose
yesterday between Mr.. jackson and his
second deputy, Mr. Dolson, on the one side,
and Corporation Counsel Ellison and his as
slstant Mr.. Butts, on the other. He de-
cided the issue, as he specifically stated not
on the propriety of any act of anybody
during the week that had preceded, but on
the proposition that the statute makes the
elections board the official custodian of the
ballots; that the supreme court had re-
manded them into the custody of the board
last spring, and that 1t did not lie in the
province of a justice of the supreme court
to change the custody unless it were shown
that the ballots were not safe in the hands
of the board of elections. The court held
that Mr.. Jackson had not shown this.
Lively Argument.
Before the decision was announced there
was about as lively an hour of argument
as special term, part two, had seen between
two sets of public officials for many a
day. Mr.. Ellison in opening for the cleo
lions board his argument to show cause
why the Hendrick order should be vacated
called attention to the fact that the bal
lots had originally been impounded into the
custody of the board of elections with the
consent of both parties, Mayor Mcclellan
and Mr.. Hearst The board, he declared,
was the proper body to have such custody,
and the order directing it to take charge of
the ballots was obtained in the proper way
and in the proper court.
1T remained said Mr. Ellison, ''for a
gentleman whom l have known intimately
for twenty years. sitting this honored
bench, without notice to the parties. but
with the consent of Mr.. Hearst to issue
order that sent a lot of men out at mid
night to corral and maroon these ballots
by threats and otherwise ut them in the
custody of the attorney general"
The attorney general remarked that he
did not for personal custody of the
ballots. but did not understand that any one
objected to his being the personal custodian
of them.
I'VE do, most strenuously," shouted Mr..
Ellison.
Justice Leventritt interrupted.
Jackson Claims Authority
II wish you would point out to me, Mr..
Jackson he said, ANY authority that the
court has to impound the ballots into
the care of counsel for one side of a case
pending trial, even though that side be the
sovereign people of the state
Mr.. Jackson HAsted that the court had
such authority under the common law, in
asmuch as the ballots were evidence in an
action already begun before it and evidence
on. which was based allega tons that crimes
had been committed.
Il am officer of the court" he said,
land the court has entire power to impouni
any evidence into my custody that it sees
fit
Il don't deny it's power to secure the
preservation of these balIots" RESPONDED
Justice Leventritt, but l should like to
have you point out to me the authority for
placing the ballots in your custody as coun.
sci for one side in the action
Mr.. Jackson replied that Mayor McClel-
Ian and the board of elections were both
seeking to destroy the ballots.
That's untrue, shouted Mr.. Butts.
Justice Leventritt called attention to the
sta tute making the elections board the Of
fetal custodian of the ballots. Mr. Jack
son suggested that the order of Justice
Hendr.ck might be modified so that some
third party should lake the ballots, or so
that the attorney generals seal should be
put on them III addition to the other seals.
Justice Leventrtt wanted to know what
evidence there that the ballots We're
not safe, and Mr.. Jackson replied by read
ing the affidavit on which he obtained the
Hendrick order.
Now all these things" said Mr. Jack
son, lead me to believe that the board of
elections, having no requirement to pres
erve these ballots, would destroy them at
once
But they are required to preserve Them
Justice Leventritt interposed.
quite true, your honor returned the at
torney general, but the appellate division,
in denying the mayors application to have
them destroyed, intimat ted strongly that if
the elections board made the application 1t
would be granted
Leventritt's Decision.
Justice Ieventritt suggested that if the
boxes were taken out of the hands of their
:o1,t TIT, hot.