New-York tribune., 1907-06-29
HOT RECOUNT FIGHT.
C. J. SHEARN PUZZLED.
Mcclellan Ln7oyers Pit Up Stiff
1rgument against Bill.

For three long hours yesterday lawyers repre-
senting Hearst and Mcclellan, argued on the con-
sttuonality or unconstitutionality Of the recount
bill before the Appellate Division The Hearst
legal cohorts appeared to answer an order OF the
court to show why temporary writ OF pro-
hibiton obtain on Thursday by Mayor Mcclellan
should not be made permanent. Clarence J. Shearn
argued that the bill was constitutional Against
him Corporation Counsel Ellison. Eugene
Lamb Richard. jr.. and Edward Nj Grout
The McClelantes advanced in all just twenty
three arguments, each purporunS TO snow thaI
the last Legislature had passed unconstitutional
recount bill Mr. Shearn took up each objection IN
turn, and when he had reached the last he calmly
Informed the court that he had disposed of all of
them, and 'Tefutod each one beyond doubt
Corporation Counsel Ellison in arguing against
the measure, said that It evidently local
measure" and that nothing showed this more
clearly than the Governors message and ms SUB
sCqucnt references to the bill. He suggested that
the court incorporate this in its brief making
permanent the writ" This attack upon Governor
Hughes, veed it was caused mild sensa-
ton in the courtroom. and there was a notice
able increase in attention the part of the
Judges themselves.
Shearn and Richards indulged in several sharp
exchanges OF repartee. The latter announced with
great sarcasm that Mcclellan had had the temer-
ity 10 actually stand up and EgGt for the right
"McClelIan." retorted Shearn. Mcclellan started
running away from right and truth after the last
mayoralty election, and he has not stopped yet"
Mr.. Ellison argued that the recount act was
both unconstitutional and unneCessary-unueces-
sary because the quo warranto proceedings now
pending would settle the whole question. He said
that the bio was contrary to the constitution Of
the state and that the provision which made the
cost of the proceedings Il charge on the city in
case Mcclellan should lose would be taking the
taxpayers property without due process of law.
"Oh, they will get their moneys worth" inter
jeCted Shearn
Mr.. Ellison thought that the cost Of a recount
would he at least 100000. His other arguments
against the bill were practically those advanced by
Mr. MCGOWAN as his reasons for vetoing it as
Acting Mayor
Mr.. Ellison was followed by Mr.. Richards. who
simply amplihed his predecessors arguments. eft
this recount is bad" said he, ''and Il Hearst
should be declared elected the Mayor would have
10 return to the city the salary that he has drawn
since the last Mayoralty election. That would be
, manfestIy unjust" The unfeelng Shearn smiled
at the idea.
In answering Messrs. Ellison and Richards. Mr.
Shearn took up each argument in turn He said
that the bill neither bipartisan retroactive.
tutiOnal, for nowhere in the constitution was any
prohibition of such measures. He argued that the
bin not local because 1t applied all cities
Of the first class. When of the judges asked
why the bill had been sent TO the Mayor of New
York City and not TO tho Mayor OF Buffalo also
the Hearst lawyer seemed disconnected and for
awhile could find plausible answer.
Many Of the onlookers regarded the hearing as
: n good one on the Mayor" He Is PLAYING
Hearsts game for him" the remark occa-
sionally heard from different parts Of the room.
IN the martyr role better than TO be the big man
down az City Hail.
Decision reserved. but Corporation Counsel
( Ellison appeared confident that the court would
( mako the writ permanent. This opinion held
10y many OF those present