Newark evening star and Newark advertiser. [volume] (Newark, N.J.) 1909-1916, 1910-12-22

the original ballots remain in the box.
The reason for holding the duties of
the Justice to be merely Ministerial is
founded upon the premises that the
votes are identical. There is no occa-
sion to exercise judicial functions once
this identity be established. Without
that foundation, however, the entire
scheme of the Legislature is UNDER
mined, and its beneficent purpose to
correct errors is made an agency to
pervert right and perpetuate wrong.
If the design of the statute is to cor
rect errors made in the original count.
(Ruh V. Frambach, Is VS. $50, that de-
sign cannot be accomplished If doubt
exist whether the same ballots are re-
counted.
To correct the measurement of a line
we would not be certified of its length
by a second measurement by means OF
a discredited tape. Nor would al UNI
tested scale be employed in proving "a
given weight.
The first recount act appears to have
been passed in 1880 (Pol. 1888 OPP. 229).
1t was made applicable to elections for
members of the Senate and Assembly
only. The wording of the act is sub
s%tantially like our present statute. 1t
has one significant sentence, however,
it reads eff 1t shall appear upon such
recount of tn eballots cast at such cleo
ton that on error, etc. 1t also provides
thai a new certificate shall be issued
to the party who shall be found to have
received a majority of the votes cast
at such election.
The above act remained alone upon
the statute book until 1895, with the
exception of the act of 1890 hereafter
noted. In hat year 1Pol 1896, $50.
section 49,, an amendment was passed
providing for a recount in behalf of any
candidate for any Office.
The act seems to have been COM
pulsory upon the justice to grant the
prayer of the petition. This act does
not speak of the votes originally cast;
it uses the term recount, and provides
that ION the conclusion of such re-
count the said justice shall certify the
result thereof" The present act, EN-
bodying the substantial provisions OF
the act of 1880, above referred to, first
appeared in the revision of 1898, by
which all former acts were repealed
and it continues substantially unaltere6
to the present time. The specific ref
erenee to the original votes in the pres
ent act is significant, when we consider
the history of legislative provisions fol
recounts. 1t seems, therefore, impera-
tive to determine what ballots were
cast at the election, otherwise how car
there be a finding of a majority votes
cast at the election?
1.-THE power to sdo this must reside
somewhere, and must be exercised, BY
necessary implications. 1 think it re.
sides in the justice supervising thu
proceedings to recount. He must de.
eide, perhaps not by means of wit.
nesses or external evidence, but al
least by the Internal evidence pre-.
sented by the box and it's Contents
whether he is counting the ballots cas-
at the election or not. If not, then Il
Is not a recount, and he has no statu
tory authority to issue a certificate
unless he has found that the Originally
defeated candidate has In fact demon.
strated not the bare fact that Their
are at that time in the box a majo ity
of votes for hing, for an inquiry With.
the scope of the act was wholly In
effective n nugatory, and, while tn,
case did not go to the consideration
of the constitutionality of the statute
it plainly indicated that that result
t would have been reached, Il 1t hat