Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-11-02
THE PHRDNPYORY WRIT
Judge DeWolfe's Reasons for
Commanding a Count Of
the Vote.

HIS Judgment Objected to ant
the Question Of Appeal
s,,~s Argued.
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From Fridays Daily.
A profound silence followed Judge ID,
Wolie,s ascent Of the bench in the district
court yesterday morning and the routin,
business-the opening of the court il
Bailiff Thomes' musical Hear ye, heal
ye,n and the reading II the minutes OF The
proceedings OF the previous day-were lis
tened TO with q mechanical interest. Al
ter Thompson Campbell, Esq.. had made q
motion in the ase Of Courtney ct al, and
after that motion had been passed for
further consideration, every eye was bent
upon the judge and every ear strained to
catch his first u~tterances in the decision
expected on the answer and motion OF the
respondents, the c~anvassing board OF Sill
yer Bow county, in the mandamus case OF
McHatton. candidate for the district judge
ship OF the Second judicial district. The
court remarked by way OF introduction,
that the time allowed for the preparation
OF an opinion had been so brief that what
he would present must be accepted more
as q rough draft than as an opinion and
he would reserve the right to review and
revise it before it became a matter OF.
record.
The decision was written and volumin-
with such clear and deliberate enunciation
that every person in the room could hear
without the slightest effort, the interest in.
creased as the determining point came
nearer to mental vision, and, even after
that pointha been reached and passed, the
sameSalmost breathless interest was mani
Tested. No signs Of approval or dissent
were displayed and even e~xultation on the
part OF those in whose favor the decision
wa given was not apparent. Broad lines
sof keen appreciation marked the faces OF
many present when in the course Of his |
reading the court touched upon the s.most
clear and emphatic" language OF the q " as |
laid down by Judge Knowles, Of counsel
for respondents, when he was q member Of
the supreme bench OF the territory. Judge |
Knowles himself was the only unapprecia- |
tive listener; he sat with bowed head and,
following q ~favorite pastime, tore a paper
to -tatters.
- E.f&E The Opinion I'm Full. |
The ~relator, J. J. Mediation, in his affidavit
and ~petition for che alternative writ of mau- 4
damus, alleges in substance, that, at the cleo
s aSn a1 isss u he so was 3 candidate 4 for the Office Of
district Judge of the Second judicial district,
and received 1854 votes for said Office, against
received By the respective candidates. was e1-
clusi 20 of the votes cast at Precinct "a, in kaid
county; that at the last named precinct III votes
for the opposite candidate; that If the votes cast
at said Precinct 81 had been counted the relator
would have q majority of q votes over L. ]
Hamilton, the opposing candidate for the said
The petition farther alleges, that the returns
of the votes cast at said Precinct 81 were duly
ssid oo1nt 70 te sns ei tSs ssid c Jsor. Hsii s and I o.
vine, but, they refused to count the same, and
make abstract thereof - required by law, and,
Counted 30 assi1 and 1 abstracts sd thereof sotss made dee the Ssm peia tor !
will be defeated for said Office of district judge, ]
to which he claims to have been elected. The g
prayer 10 for an alternative writ OF mandamps I
votes cast for the relator at the precinct named, ;
or to show why they have not done 80. 1.
After some preliminary motions as to the form :
the action, and O demurrer to the writ, which .
the court overruled, two members OF the board
Jack and Hal-fled an answer, in which they
set up several different causes for not making E
an abstract OF the vote cast at said precinct. !
The other member of the board-Irvine-also .
lied q separate answer, in which he alleged his
and desire to count the vote of said 9
and was only prevented from doing 30
BY the refusal of his colleagues to join with him :
The question presented for the decision of the Q
,ouse shown to justif. the action Of the major .
y Of the board in rejecting the vote OF said pre-
.iefy summarized as follows: p
First-They deny that the relator received III o
'otes ut precinct "a, and his opponent only 8 e
Second-Deny that the returns from said pre- :
inct were sent or received by mail - = :,
Third-Deny that the returns were regular, T.
~Fourth.,Deny that the returns contained the a
roper tally sheets, or names of candidates voted a
Or. or the number of votes received bv each q
andidate, at full length, set forth as required n
? law or that they were returns OF said pre- 81
not q, or that the returns were certified as re- Il
uired by law. aEt-..-k asg NJ
,Nfth--Deny that the returns were on p' oper ) !,
Hixth--Deny that it could be easily ascertained al
the returns the number of votes and for "
Ssventh-Deny that the relater will be defeat "
! for said Office BY reason Of the refusal of the !"
,ard to count the votes of said precinct.
It also sets up several matters as an Affirmative w
recinct. Most Of this affirmative matter is an M
npnhcation, In an Affirmative form, Of what as
been already denied; but, in addition, 1t also . -
net 81, and that the returns and names of the pr
tiers were not written down by the clerks Of Or
ection, and the certificates to the returns, and oA
Q attestation ofthe judges was not in conform :,
The nswer then continues as follows: "That ref
hey the canvassing board were intrusted ap
law with the duty of determining what were fer
returns Of the votes from said precinct "a. Pr
hat, in performing this duty they examined ~,
that purported to be the returns from said pre- vi,
and what were presented to them as such =
eturnH, and determined that they were not the an
eturns ofthe votes at said precinct" mn,
Then follows some allegations in regard to
ne aftidavits obtained by the board, which 1t
6Ss oeeI fe cd mesieessa ~ ,b for dG reasons hereafter A
n deciding upon the efficiency of the cause enc
re shown, It Is necessary, in the first place to -
naider and determine the jurisdiction and KeE
wers of the canvassing board, and whether the
functions were ministerial only, or partly ~,
.nisterial and partly judicial. If ministerial the
y, the court can compel them by mandamus for
perform the duties required ofthem by law;
ereas, If they act in a judicial, or in a quasi quo
1cial capacity, while the court may by this s+;,
'ceeding compel them TO act, 1t cannot take "s'o
o them the discretion which pertains to the tina
Sh1c va oh Ju0AClh1 luuCtlOubs e. HUI
he powers and duties to be performed by the mo,
nd az also the persons comprising 1t, are de- Inc,
ID by section LOSS, Of the 9Th division of the LIE;
ised statutes and is as follows; VIII
After the fifteenth day after the close of any flee
,tion held under the provisions of this chap A
or sooner. IL all the returns shall be received. ohis
Of the board of county commits = -. ~
board shall, taking to his assistance The nro- ask
, Judge or q justice Of the peace, and one the
pr on1cer or the county, or any county officer, beer
ceed to open the returns and make abstracts m
he votes. Such abstracts of votes for dele CT
to congress shall be on one sheet; the sb- MEG
ct Of votes for members OF tie leeisistiye as ther
biy shall be on another sheet; and the abb argu
ct OF votes for territory and district officers .Jr
!. "a oonpts 81 ste e sna ne abstracts or bon,
mother sheet" MI
sre, it will readily be seen, Is nothing which upol
axes In the slightest degree OF the exercise pres
ldicial or Discretionary authority. THE ONLY IN Il
or conferred 10 to "open the returns and IT,
ns n ciesriy manifest from the snccesdinS Mr..
se of the section which directs that the ab- Ju
,ts Tor delegate to congress. for members of to I'll
AnsnIakn.~ a-l g.. A~--gA--s.I - . -