Show HEARST CANNOT OUST MCLELLAN Attorney Gener General Myers Reply to Resolution of te the New York Assembly LAWIN LAW IN THE CASE QUOTED NO REQUEST MADE TO BEGIN ACTION Albany N Y March General Mayer sent to the assembly to tonIght tonight nIght his reply to the resolutIon ask ak akIng askIng Ing him to inform the assembly whether in his opinion in proceedings taken in accordance wih with chapter 16 of the Code ot of Civi Civil Procedure the balot ballot boxes containing the ballots cast at tle lat last eleton election in New York City ca can be opened and the ballots recounted and whether the the said William R H Hearst or any candidate upon te the said Municipal Ownership ticket ha has made complaint to him Or request tat that he commence such acton action In hIs reply the attorney generl general says W R B Hearst ncr any other candidate upon the Municipal Ownership ticket at the election lecton which took place lace in the cit citY of New York on the first Tuesday after the th first Mon Monday Monday day in the month of November 1905 has made ay any complaint to te the ator nay ney general or requested him to corn com commence mence anY ay acton action In accordance wit with chapter 16 of the Code of Civi Civil ue nrc or otherwise e te the matter of application ot of William R R Herst Hearst et al al decided on Dec 13 1905 by the court of appeals Judge Gray who wrote te the prevailing opInion said among ether things II Further the preservation of the balot ballot boxes under lock and seal Is di directed directed for six months a as evidence for tor use in the cours courts I think that te the presumption should obtain as to the proclaimed resul result of an electon ejection that the electon electIon officers have performed their dutes duties and a defeated candidate should be left to such acton action at law or otherwise as may be appropriate wherein to queston question it it a as to the ballot ballots counted without objection An acton action wherein the complaint alleges that a person unlawfully holds a public office wIthin the state is tri triable tn able of course and of right by a jur jury section Coe Code ot of Civi Civil Procedure In such acton action upon the presentation of facts showIng fraud or mistake In Inthe Inthe the count of the ballots In an electon election district I am of the opinion tat that the court has power to order that the bal ballot ballot lot box of such electon election district may be opened Upon te the testimony adduced the jury may then determine te the facts under appropriate Instructions as to the law from te the court and therefore if the fact facts warrant the ballots eon con tined tamed in any such ballot box thus re reopened reopened opened by the courts order may be recounted |