Year: 1871


the validity o. the returns. They must have the
power 10 determine whether the returns are cor
rect or not, AMI the votes atuay cast for the can


Judge GILBERT said-Thar motion Is dangerous
precedent to give to any Board OF Canvassers.


Counsellor DAVIS sad:-Thc frauds are SO palpa-
BILE that we make this application 10 the Court that
1t might adjudicate whether the canvassers should
not use their Judgment whether or not TO canvass
turns II Is matter OF physical imposslbity that the
votes credited In the First district OF the Sixth ward
could be cast legally during the allotted time. The
question Ia, shall the canvas5ers certify that the
votes were legally cast, or whether they nave tine
power to reject tue return and pronounced fraud
Must the canvassers canvass return which they
know 70 DC fraud upon It's face9 They are to cer-
tify TO the votes cast and these have not been cast


Judge GiLsshr NE saa ne WOULD near them upon ne
Ing the Board to go behind the returns. 1t was
dangerous precedent TO establish.


Mr.. TRACY said th0t the superior powers OF the
Supreme Court over the lesser courts are not dls-
puied. Whenever ministerial body rails to perform
Supreme Court for an order compelling It to per-
form its duty. The Court IN this case Ia called
TO e e
Courts and obtain the office out OF which he is
Judge GILBERT replied. saying, II think the
remedy OF the parties VIII be to OBTAIN writ OF quo
support OF the application. He asked whether the
parties in this case who were benefited by these
frauds should enjoy the emoluments Of the oiice
and the aggrieved parties be forced TO fight their
way through The courtsf The Court was pOwerless
TO issue q writ OF quo cdrrGntO until the parties
the writ. He wanted to know whether the Board OF
Canvassers had the power to act judicialy In
the case where return was made from Q
place other than the designated by the Board OF
Aldermen. before that Board OF Canvassers are pre-
sented two papers, which are alleged to be the re-
turns OF tine inspectors OF election Of certain dis
trcts this city. We challenge those papers, said
Mr.. Tracy. and say that they are not returns OF
not the papers required by statute. They are not
such papers as the county canvassers are author
and fraudulent returns Of pretended votes. lie did
not argue for one moment that this Court could
90 back Of legal return OF the canvass Of votes
cecding The county canv0ssers could not go be.
nind, but they could 90 aown to the ballot box and
inquire whether that canvass was canvass OF the
votes which cast legally or Illegally, ana which
were counted from that box, or whether they were
pretended votes that had been made up frauduently
by these inspectors and sent to the Supervisors as
pretended canvass. Tnat was the only question
here. They challenged the paper and satd that the
paper presented was not such paper as the law
required. They said 1t was q fraud. and on
that question they said II was the duty
whether r was q return or whether it was not. The
point he raised here was simply this:-Taat 1T was
the auty OF the canvassers to ascertain whether the
the election held there and OF the votes cast at tat
election, and that they said they mad no power 70
inquire Mr.. Tracy an illustration said that they
wond suppose that all election was ordered TO be
held at certain precinct In This city, and certain
persons were directed to hold it-three inspectors
don't 90 near it. Tney 60 of to COCK fight or some
other amusement No poli was opened: p 1,, SubSe- sc
spect0rs said that they did hold an election, and
they presented the result. II was an acknowledged
fraud vet 1t was return, perhaps, upon which the
eniIre government OF the Stale of New York was
determined return which was to put the army
and the whole monetary power OF the State into the
hands OF a certain man as It's chief magistrate Was
II possible IN this day and age OF courts, which were
charged with power to supervise the action oi all
these inferior tribunals, TO say taL they were pow.
erless to prevent fraud OF that kind? Was
there no remedya Mr.. Tracy referred 20 the
Changing cha Of the polling polling place in the Twelfth ward
That polling place, he sad, was removed mile
14e po aSd There a
authority ior the changing OF that place. There
was pretended authority IN resolution oi the
vdcd that II the place designated could not be pro-
cured the Alderman OF the ward Was to procure
Board of Aldermen to pass such resolution
as that. He held that the return made
TO the canvassers from that district was no
better than piece oI brown paper so FAR as the
canvasSers were concerned. The, could not regard
IL ALL it purp0rted 10 he return OF the election not
held at the place designated by the Board Of Alder


Judge CIrpRRr-you contend that this Is not
return because II does not einanate from The polling


MIR. TRAcY--yes.


Judge GIr.BgRT-n would issue a mandamus
what would be the orm in such casey


Mr.. TRAoY-1he order would ioroid the canvassers
from entering this pretended return upon their
statement. Gan Your Honor not command them TO
enter upon their statement any return wnen It Is
shown Ile pou was not hell at the pace de-


Judge GILBERT was understood TO reply that, as
at present ADVISED he did not thinA he could. lie
could compel them to do their duty.


Mr.. TRACY said that IL tncy refused to do their
duty the Court could compel them to doit II 1t
wsa ne and auS ey 70 Tensed % do he
Court could command them to omit could
1t notS The return n o,S on us M lace zee - showed
tised showed that the election was not held there
There was no Judgment to be exercised. vi hat he
alleged was that Lie cauvassers were about TO put
upon their statement votes which were cast at an
illegal place and where votes had no right to be
Ia no validity ana that the poll was Illegal then it
had right TO command them 10 refrain IRON enter
ing the return upon their statement. lie came into
Court anu alleged that this Board OF County Can.
vassers had In their possession pretended paper
setting forth that SO many votes had been cast In
canvassers might as well record a vote cast in
Newark as to record this. When the canvassers
OF which vas questioned, he held that 1t was their
duty to inquire whether IL Is legal or not. suppose
two papers came up purp1rtlng .i. to be signed by
election III the same district Must not the canvass
ers ascertain whcn one was genuine


Judge GILDEEr-ffow are they 10 dOit?


Mr.. TRACY replied that that was Tor them 10 de-
termine. Iney could leave 1t for jury to decide.
ment an 4 said that he would postpone the further
hearing until seven O'Clock. The Court tnen al


Judge Gilbert was on the bench again promptly at
seven O'clock when Mr. Tracy continued his argu
meut.


He was followed by Mr.. BARNARD, who said that
II the return IRON the First district OF the Sixth
ward was wrong, MIR. Chauncey NJ. Felt asked that
the Court do another wrong by throwing out 500
honest votes. The county canvasser5 had not re-
fused to do their duty and had or
dered the returns to be corrected. They could
matter M. Barnard said that II did not appear thar


single individual lost his chance TO vote by reason
OF the changing Of the polling place.


General CROOKE c0ntended that the canvassers
had no business with the poll lists. The returns
were the only things. He held that the Court could
not grant mandamus 10 throw out returns correct
upon their face.


the Eanvassers ID ad,niC or delS fraud In returns
correct upon their face.


Mr.. TRACY contended that 1t was the duty OF the
canvassers to satisfy themselves whether there had
been fraud committed, and n so 10 send the returns
back for correction. He would be content II Tile
Court would decide that 1t was the duty OF the
Board to ascertain whether returns were correct or
not and the ballots honestly cast.


ADCeala