Daily Republican., 1880-10-20
Ths afidsvi. Sf Knight does not dspy,

| stNtoo hlsO IN Uallhghdr'g 1mdaytt
which Of course was seen by Knight BE-
fore he made his own.
1t being most material fact allecet
by Gallagher not to deny 1t by Knigh
in bis counter affidavit was q virtua
admission OF it's truth. In that light
therefore, it Is entirely opposed to tb,
statement set forth in both knight
and Ksnnedy's affidavits, that imme
diately upon ascertaining the resul
of the poll the certificates were mad,
out for Johnson. But supposing 1t Il
be true that this so.called board Of re
vision rejected the alleged illegal vote
OF Coyle, the question still is, had
that body any such right2 II 80, it hat
not been shown; nor did any exist II
1t for any suoh purpose. There is mo-
q line or word OF any statute that gave
them any such right. The presiding
officer and judges Of the election had
such light when the alleged illegal vote
was offered, and, perhaps, if it could
have been identified, at any time be
fore 1t had been read and counted; bui
after that their power ceased, nor did
any exist anywhsrs for that purpose,
for the law says that there shall b. nc
contest of such elections.
With an anxious desire that the con
clusion we have arrived at may seem
altogether the proper one, but concerned
more that it should bs entirely salts,
factory to our own cousciences, we sn
nourcs as our opinion, that the certif-
Gates signed by the judges of the cleo.
tion in question we're nullitiss, by
having no name inserted in thsm, as
we believe from the proof before us,
at the time they wers signed by the
election officers and that body dispersed !;
and that no authority was given q. any
time by those officers to fill the blank
with the name OF Jesse U. johnson /;
that Ziba Ferris received at said elsc
tion the highest number of votes cast,
and was therefore chosen for the office
Of inspector, and that certificates of tho
fact ought to be made in due form Of
law by the presiding officer and judges
Of said election, and delivered as the
law reqUires and as prayed for in this
rule. We, therefore, order that the
rule in this case be made absolute, and
that q psremptory mandamus be issued
commanding this duty to be performed
IN or before the 2lst instant.
The ooncurring opinion of Judge
Wales recites tho fasts Of tho election,
he provisions Of the statute, explains
he jurisdiction Of the court, and after
eviswing the testimony ofMr. Lindsay,
!. Pisrcs, continues:
Knight in answer to the rules, pre-.
snts through his counsel on affidavit
II which he does Not deny any of tho
obtained in the relator's petition, but
onterts himself with alleging that
Immediately upon closing the said |
lection and aEcertaining the state of
ne vote three certificates, in due form
> prescribed by law, of tks election
t inspector for said district and made
nd signed by this deponent, the said |
residing officer, and George W. Ken
edy, senior, and Lindsay l.. Pierce,
1dges of said election, duly chosen and
ualified according to law, aud certify
lg that Jesse U. Johnson was elected
lspsctor for said district, were duly
snsmitted," &c. Mr.. kennsdy's af-
lavit is almost a precise cepy OF the
ls made by Knight, the only differ.
ace being in the name of the aftant.
either Of them contradicts or denies
Ie material facts and specifc charges
It forth in the petition OF the relator,
I'd which are fnlly supported and
owed by the testimony of Gallsgh her
ID Pierce.
Neither Of them denies that Ferris |
csiysd the highes! number of legal t
tes, or does either Of them assert that
hrEon received majority of tAs vote, b
st, or that hs sreceivsd an equal MI M v
r With Ferri0. In addition to this h
light, when called as a witness on
Q part of the relator, claimed ths pro-
,tion Of the rule which exempts
rson from giving testimony when his
swers might subject him to indic'. c
,nt or to the payment of o pens.lty. "
is true he was rot examined and put Il
the test, but his readiness TO avail ci
nself OF the privilege of exemption W
iicates that he was not willing to is
| all he knew about the result of the sc
1ntipg and the signing Of the papers. oI
nnedy and Pike, who, tmay be pre- .oi
med, were conversant with all or tt
'st Of these transactions, we're sum. co
med by the relator to appear at the 7,
airing OF the rule. No excuse or ex pt
nations was made to account for
,lr absence. Their appearance could
We been compelled by process Of at.
hment, but this would have caused SO
ay, and their willful or unexplained &C
glect to obey the summons of the ty
lrt can be interpreted in only one ali
y, to wit; as an admission of the W
tn Of the relators' petition, OF of ar
ir inability to deny its charges. CO.
ey could, at least, have refuted or vi
,laiHed those facts which are charged lat
being within their own knowledge, wi
,pedy has, therefore, by his own ra
duct, virtually put himself in de-
II.
What then is the duty Of the court
,isw of the facts admitted or proved da
his case? 1t is incumbent on the fsl
,tion judges when they have count on
,he votes and ascsrtained who has
,ived the highest number for the ne
70 of inspector, to make and deliver a 10
iiicate thereof to the person elected. TN
y have no discretion in the matter. du
y must give certificate according
le actual result of the counting. ,
ave the defendants done this dutys n.
lsarly, no. The certificates which C.. &C.
5 signed on the 5th of October, at 90, no'
close Of the counting, were not val VA. Va.
ertifcates. They were signed on 20. ~'
1,aliaf III Of fhe ', a mo nf Ziho Earr;o ATo