The mountain Democrat., 1865-12-30
Defeated Again.


sOrs, and was again defeated. He appeal
ed from their decision to the County
Court, and has again been defeated. Ex
perience should teach him the folly Of
appealing. He has been weighed in the
balance and found light weight. He test
ed his popularity before the people; his
ESnesty before the Board Of Supervisors {;
his legal ability before the County Court,
and got worsted in every instance. With
remarkable perseverance he pursues the
office, but with his accustomed slOwneSs
he fails to over;ake it. 1t is just little
beyond his reach. Below we give the
clear and we'll considered opinion Of Judge
Squires in the contested election case Of
j. G. McCallum against Geo. E. Williams
for the District Attorneyship for this
county. 1t is conceded BY all parties
that the opinion of Judge S. let's our mel
ancholy friend out.
STATE OF CALIFORNIA, In the County Court in
County of El Dorado, and for said County.
J. G. McCALLuN, Contestant,
against
GEO. E WILLIAMS, Respondent
This action is instituted by the contestant
under the provisions Of the Statute providng
for cQntestng elections, other than for mem-
bers of the Legislature Governor and Lieut.
Governor, in which he contests the right Of the
| Respondent to hold the office Of District At
torney from the lst Monday of March, 1866,
the Respondent baving been declared elected
to- that office at the general election held Sept.
9th, 1865, and a certificate thereof having been
issued to him BY the Board Of Canvassers.
In determining this case it is impossible,
without occupying much more space and time
than would be proitable, to notice all the nu-
merous charges made and denied in the respcc-
tive pleadings Of the parties, as indeed no
proof was adduced 30 subStantate the greater
part Of them. | shall confne myself 10 the
consideration only Of those concerning which
proof was introduced and relied up0a to es
tablish or refute the rights of the Contestant
or Respondent.
To prove and reflte the charges and denas
of the Contestant and Respondent. there was.
necessarily perhaps, from the nature Of the
case, great mass OF testimony gwen III by
each having near or remote bearing upon the
issue to ke decided. have endeavnred to give
this careful examination that | might CON
scientiously and inteigenty discharge the dn'
ty that the law imposes upon me. Ii Is IN eYl'
dence that at the general election held Sept.
9th, 1865, there were three candidates nomna-
ted and voted for for the office Of District At
tornev, uamely-the Contestant the Respond.
ent and one John Bush for each of whom
votes were cast. as declared by the Board ui
CanvasserS, to the number following: for Com
testant 2UV4, for Respondent POPS, for John
Bush 2j9 1t is charged AS nnl-conduct upon
the part If the Board OF CanvasS"rs that the
votes cast at Lake House aud Richardson :
al. i l.
DIc ;a.. ~ 9m!hcient cause i shown for dIShl
lowing the returns from these precincts, and
shall therefore admit these votes, as ! am fully
convinced that the Board should have counted
them. This adds TO the Contestants number
AS already gwen, votes cast for him at Lake
House, and II at Richardson's Mill. walXr y
Contestants vote 2D2g allowing t. Respond
ent votes at Lake House, and at Richard
sons Mill it would stand 2oS3 votes for Res
Pondent.
Following the order observed at the trial.
am next called upon to determine upon the
soldiers vote do not feel disposed to enter
into any extended dissertation upon the Con
| StItutiUnalitv Of the law allowing soldiers Ia
vote. The Supreme Court of the State has
pronounced upon the matter, and in my dccis-
ION | should Of course be guided by the oDin-
ION as announced by that Court. But there
arc reasons iu this case aside from the ques-
ton of Constitutional law, why | am Of the
opinion that the soldiers vote cannot be taken
into consideration. The manner Of proof was
itself of very imperfect and | may add,
loose character. BY the general election law,
Election Precincts are to be established, and
proof was gwen of there being Precincts sO
established but no such Precinct as Camp
Babbit is shown tn have been created by any
authority whatever. 1t is true that by the
amendment tn the general law, approved April
4th, 1864, such persons as may be in the mill.
! Vi pf no mi M nj to sal l.
though not In the County at The time Of cast
ing the vote, sill the Supreme Court havlnG
decided this question, and that such power
is unconstitutional, though conferred Dy the
Legislature upon class who might seem to be
the most deserving of this precioIs right, yet
| am bound by the decision Of the highest lw
tribunal in the State, and however much
might wish to give full force to the votes they
have given, yet within my jurisdiction, having
regard to the rule already alluded To, | am
forced to disregard these votes in decidin z
this case.
We are then brought back to the position
occupied before considering the soldiers vote
and il stands for Contestant 2029 votes, for lie
spondent 2O33 votes. The Contestant next
pr oceeded to introduce evidence Of illegal votes
as cast for Respondent. To establish this sew
eral Italians were sworn and were proved tC
have voted The proof was not of a character
to warrant me to throw aside this Italian
vote" as it is called. No proof that could bt
regarded bv Court Of Justice was made es
tablishing the illegality of their votes. Hear
say testimony is in general excluded in Courts
of Justice, and it would be but upon evidence
of thus kind that | could act were to throw
out this vote. There was some proof that they
were Italians and born in Italy. and though
one might be sufficiently convinced by course
of presumptlve reasoning that these men were
Italians and not American but Italian born
still | cannot proceed upon such presumption
when sitting as Judge, and pronounce, in eff
feet, judiciallv that these men have committed
a crime, from the mere fact that they were
born IN foreign country; and the rule mUst
be operative in this case as in others. that
these men are innocent until proved to be gull
ty, and certainly it would not be seriously con.
tended that conviction could be had upon any
such proof as was given at the trial of this
case; and it will be remembered that all of the
Italians who were questioned replied that they
had been naturaliZed, and were citizens. ii
then these men were not guilty of illegal vo-
ting they were legally entitled to The privilege
and as | have before stated, the proof offered
does not rebut the presumption the law raises
that they did act lawfully in voting. cannot
regard the Italian vote as illegal.
1t was strenuously urged BY the Contestant
tina. sufficient amount Of proof had been ad
duced by him to rebut the presumption of cit
izenship, and that it devolved upon the Re
! SpOnoent 10 snow lnat tney were ciuzens. ]
cannot. from any conclusion | can arrive at
by what seems to me a reasonable view Of the
law, nor can find any authority to support
or tending to support the view Of the case ta-
ken by Contestant, for the facts by which he
would shift the burden of proof to the Respon-
! dent, do not seem TO me To be sufficient. The
analogy attempted 10 be drawn between CHI.
zenshiD and license, does moi hold good for
in this State, at least, it is expressly provided
| TINT uDon being called upOn the party arrested
for vending any article or articles requiring a
license shall produce it. 1t being kind oi
evidence peculiarly within his own possession
| and nnMnr and in the nhsence of nnY st Ltmta