New-York tribune., 1908-03-07
rAN OPEN BALLOT BOXES
, JCTORT FOR HE4RST.
pe,Taou by Court of appeals on
Di7Ided T0tc.
nv telegraph to -7ae Tr:bpre ]

AFs-~h 6-TTuder a decision handed
a.,- by the Court Of Appeals the ballot
- =, fha New York City election OF 1900
~ opened End William Randolph Hearst
- has a chance to prove his contention
George E Mcclellan sits illegally As
Though really side issue OF the real
Na'o- ,,..-1slla7 case. this is tho first time
,,-,,ss- court IN tho state has declared that
a -. toxes NAY be opened for a recount
z.-iziou was the completeness OF 4
-z-ric7llarz fled by Attorney General
sN = connection with his quo wsrranto
- - test Mayor McClelian's title to
--4,z questioned by the Mcclellan law
'T'0F ,,,,eid hv Justice Davis. whose op'n-
Fs's' -, --zS ove-ruled hy the Appellate
FIRST Department. The attitude of
-. * reversed ty the Court Of Appeals
s.-sa= vote. ! to 3 Its decision is largely
o ..,, @7- Clarence J. Shesrn. the Hearst
= ,7a PRESENTED the case
-. .,e-e -7sy b 4 recount the Hearst
= ----z-a that the ballot boxes have
-, .s----,s-a5 with Il seems hlghiy prom
-. -s,-e nalut viii offer opportunity Tor
-. z.f-,-s forEer than the remainder OF Mayor
+--,-,---.= tenure NJ otlce. because OF 1shtS
Nc- '-i z-.,-- FIR possession Of the ballot
--+5s-tz which spilled them into
e'A' --,---+f7re and similar Incidents
ih7 - chief Judge Cullen and Judges
0HT--' - er6 Chase The three voting
W. -.zs are Judges GRAY. Vann ana
'a - cray fling dissenting opinion
,,,ssfion passed on and decided III
- = whether any ballot box may
g,5 i-z contents TeCounted without
d" - evidence tending 70 show some mis-
error. omission or fraud in the count
- ,.-,-asssr- ~ the vote or in the return
.,r-- further decides that the plaintiffs
- rssa ne people Of the state Of New
zo-t represented by Clarence ! SheaTn) should
- he r-ecfuSsE from giving any evidence o.
--,-5 4-aDds. error omission or mistake. except
-. regard IN election districts, specified IN q
III OF particulars
-be ceu-- refused u answer the question as
.. --he-a should lie the burden Of irnpeaching
vs,7-. sf-CleIlan,s certificate Of election should
@-sud f-- tho count ne successfully shown
In t7e course OF the prevailing opinion Judge
+fstEh- reviews the history Of several cases in
rov5nE the question OF opening the ballot boxes
snd slloAs how the former cases differed from
tins one lie says. finally:
r--a--A- -ha-a were errors IN the returns an
emission - count the ballots for the candidate
f0- E-rcT- they cast are questions HLicA can
b determined from the ballots themselves "ne5-
boxes are opened ana te oalLoLs are @ u
Ne "a. therefore. 70 see the necessity Tor the
5lrT rast tie statute does not contemplate the
recassirv of producing such evidence preliminary
- re -c- Of either party 10 the action TO avail
hir7self Cf the evidence which The boxes contain
L Is true -lst preliminary evidence must be
s-b-7ir-a5 slowing That the ballots have been
--ese-vad t- --e boxes invlolate. a was said BY
s--,ef JJ5Ee cullen n the Metz case. 70 which
We nave already referred. and that such evidence
nust be Of ---E 4 Character aS 20 satisfy the
ia court 5- me 1rst instance that they have
opeaed ana lie contents received IN evidence
md anaIy 70 satisfy the jury OF such PTeserVa-
eu- bevo-z thar we are OF the opinion that
~ further conditions are imposed upon the rig at
rf me court UD1E q trial. either 10 determine
ne risar of party 70 an Office or his guilt or or
ether party, 10 open q ballot box and 10 admit
i nay be d-.1e-ent where The boxes are sought
- ae opened under other circumstances than a Irl
o a. acton fur 4s have seen, from our reference
= he Brink that the statute vas not inteLded
70 confer uDo1 = J4cge o1L o- cotrI I-r ~ ,,S
exsHl.1ed unless il vas 70 ne end that they may
ae Isei u JUDICIAL proceedings pending or about 70
76e 5urpose p The statute requiring d preserva-
t.G9 CT the ballots Is that they may De used a.
srion -o csts----ls which candidate ,f{ "a - -,
z5e ballots would not become conclusive. for tha
would depend upon TIE question Wel-lsr ,-ts 90 r.
oeer preserved lCvIOa1e and as 10 ",3ttlSl -. -.
had bea1 cast bE persons EEl9 are Q1dIlltu Q1dI t a-e
deiz-n1t1in- the question presented. there can p"
1o doubt
Judge G-av-= dissenting opinion expresses IAe
a.aef that Il would ba highly unjust # Mayor
Mcclellan title 70 Office, ''presu1nptively good
,r law ro-r4 t.z aessfled and he compelled 70
cone i-to court 10 try the question Of title
'l1o7 -rp--~ general assertions Of fraud and
e--u-" Judge Cray says
n vc11s rs ---olerahIe Il rae NT1ornes. Gen
acting .or- Ills oTvE initiative or II az,
defeated CANDIDATE for Office ma MAINTAIN So
acton --n- = general 4Ee~T7en' ft.tl d 'al.nt-
1ate o-1e- THAR. The certified FUTHmhenf OF -"
HSoa rad been elected and that the rf~ut' "i ~
ra--ic- was brought about HE fraud error ''
mistake even. election district y tnN Iu-g .g
---a- stated h- fff Afli''-ft1 -
DIVISION becomes possible 70 rlrDT- the reSlii
r. az e=--.-- STATE or local IN doubt upon
an .r-7 r. assertions IT F"HtE l''l'A
- srroY~z-. -.r maintenance of such actions
80 = -rr --..-.H- ~ q spirit OF unrest