The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1882-10-12
THE MANDAMUS CASE.
The Defense Secure the Opening
and Glosing---Argument
in Progress.


! There was quite a large attend
ance of lawyers and few laymer
at the court on Wednesday morn
ing, when the mandamus case:
were to come up. There appeared
for the plaintiffs Marshall & R0yle
with Sutherland & Mcbride, vii
liams & Young, P. 7. Van Zile, W
II. Dickson, and Hoge 8 Jonassou
as council, For the defendants
there appeared Rosborough & NIer.
rift, Hardness s. Kirkpatrick, Ar.
thur Brown, Sheeks & RaWlins
and Judge Snow. The ATTORNEYS
announced that they were prepared
and Judge Hunter stated that he
would limit the hearing of the case
to to-day and to-mprr0N, the arg,l-
ments to be concludAd to-mo 70 II
evening. ~
j. L. Rawlins, ESD, opened the
case for the defendants, on the de
murrer tolthe Writs Of mandamus
He said there " ere two cases which
it was proposed to consider, now
ready that of A. Pratt against
Theodore Mexican, and George C.
Douglas against Nephi w. CLAYTON
the proceedings are on mandamus.
and to these. the defendants had de
INJURED. The affidavit of Arthur
Pratt was here read, setting forth
his claims to the Office, for which he
had made application, and showing
the proceedings by which he had
received the appointment, and de-
tailed his course in trying to secure
the custody of the Office. At the
conclusion o. this reading the
answer, which was filed at the same
times as the demurrer, was then read
by Mr.. Rawlins.
Judge Mcbride arose and said
this was preremptory writ of man
damus. The judge then called the
attention OF the court to
the statute on mandamus, com
menciHg on 523 to 525. 1t
prescribes Il r0ughout the practice
under the statute; that in the stat.
ute no such pleading as a demurrer
or q motion TO quash in a mandamus
case can be recognized and he called
attention under this assertion to
Secs. AS and 40. This point was
raised with a view of giving the
plaintiffs the opening and closing,
instead Of allowing The defendants
to have it, which would be the case
under the demurrer, hence the point
that demurrer and q motion to
.quash was contrary to the practice
provided by the statutes. The
argument was purely technical, and
had no relation whatever to the
merits of the cases involved.
Col. Merritt replied, and called
the attention OF Judge Mcbride to
the fact that in the W0man's sui.
frage act he himself claimed the
right to open and close under pre-
cisely similar points.
Judge McBride-4Ou conceded it:
that W IS your lookout.
Col. Merritt-Then you were play.
ing "HailCOlumbia" | suppose; now
you are singing Yankee Doodle. y
The Colonel then replied to the
points raised by Judge Mcbride.
Mr.. Rawlins also replied to Judge
Mcbride.
Judge Mcbride replied and the
matter was submitted. Judge
Hunter, at the conclusion of Judge
McBride's argument, stated that
the point raised was new, and some
what in contraYention with the
usual practice of the Court, and he
would therefore take until 2 o'clock
to decide. A recess was then taken,
At p. M. the court reasSemb led,
and delivered a written decision on
the point above raised. He held
that SO far as the demurrer raised
a question of law, the defendants
would have the opening and the
closing. but as to questions of fact
the plaintiffs would have the open
ing and closing. Judge Marshall
stated that the demurrer raised
practically all the questions in
volved in the merits Of the case,
and that to argue it over again
would be repetition of the points
made in the discussion on the de
murrer.
Judge Hunter-I understand there
are questions of fact not involved il
the demurrer.
Mr.. Marshall had an exception tC
the ruling noted, and the argument
commenced.
Mr.. Rawlins then proceeded to
open the case. The cases involve
the title to and possession of the
Offices of sheriff OF Salt Lake county
land territorial auditor. In the pro-
ceeding by mandamus the plaintiff:
must be benefited by the thing they
claim. Toentitle them to the relief
they claim they must have specific
legal right, without any specific
remedy. Their claim is. for an indi
vidual benefit, and not as a matter
of benefit to the people of tht
country. They claim their right
under appointment and commission
o. the governor to the offices. These
people must show the authority
upon which the governor makes hi
appointments, and must Show thai
the vacancies must %ctually exist
| These papers set forth that the de-
PENDANTS were duly elected, were
regularly qualified, held the Gus
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