Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-11-02

SAN AhohouNnC0 Wd1 mduO bHAG GQG
board could not make q separate canvass:
that the prosecution could not amend
causes OF action and that mo law existed
under which Mediation could 60 into court
and In his capacity OF q private citizen ask
that the vote cast for him be canvassed
alone. The board OF canvassers could not
make an abstract Of one vote but OF all.
The court-"According to your theory Mr..
Mediation is entirely remedilsss. He can.
not 60 into court on his private right but
must make demand that all votes for every
candidate must be counted. Suppose ali
the other candidates acquiesce in the
boards action excepting himself, cannot
he have s me redress or must he submit to
the action OF the board in refusing to make
q count?n
Campbell-"The board cannot count for
Mediation alone, but must canvass for all
the officers and you cannot amend the writ
80 as to compel the board to count for Nc
Hatton alone, under this stntute."
Judge Mcconnell, OF counsel ior relator,
argued against the point assumed by Dir.
Campbell and cited q case in Florida where
a writ was issued to compel recount OF the
vote cast for governor, to the ,exclu-
sion of all other candidates. In obedience
to that writ the state board OF canvassers
not only made a recount Of the gubernatU-
rial vote but Of all other votes also and made
the returns part OF their answer. Allreturns
excepting those pertaining to the candi-
dates for governor, were ordered thrown
out by the court as surplusage, the court
holding that the board had exceeded it's
authority. Mediation showed under HE
recitation Of facts his rights right to account
himself and all others and it was now
asked of the court that the writ be so
q mended so as to relieve the court from it's
delicate position.
The court announced that the only
matter up for consideration just then vas
the application to amend the writ. He
was willing to give all the time necessary to
Of both sides to consult authori-
ties, but, it was his opinion that the writ
stood upon the same footing as q pleading
and was amendable and would rule so.
Petition for the writ as it stood showed
personal interest OF the relator and 81
rule" said the court, "that the relator is
entitled to amend the writ and think that
doing 80 does not change the cause OF
action"
Campbell-"Please note our exception"
A recess OF fifteen minutes was o
taken to give counsel for plaintiff time to
make the amendment in writing.
The writ as amended was submitted at
the expiration OF the recess and she order
to the board OF canvassers as it then stood
was q command to the canvassing board
to count the vote of Precinct No. 81 and
every other precinct of Silver Bow county
and to make an abstract OF the vote cast
for district judge.
Judge Knowles now moved to dismiss
the writ upon the ground that it was not
in conformity with the order for the writ.
The motion was overruled, notwithstanding
the objection OF Mr.. Campbell who argued
that the court had no authority to make
the amendment and that the amended writ
no longer CONFIRMED to the order for its
issuance. The motion q put in writing
and exception taken to the courts ruling.
Argument by Mr.. Campbell on the mo
ton to dismiss was resumed at the point
where he left off during the morning SEES.
sion, which was the fourth ground OF the
motion which maintained that the Judge
was still disqualified from sitting on the
case because OF his interest in the proceed
ings. The fact that the writ had been
amended did n 1T remove the courts dis
qualification, counsel said.
After hearing all OF counsel's arguments
the court overruled the motion, because in
The proceedings then at bar by virtue OF
the amendment no one was interested in
the canvass, excepting the relator, I'D.
McHatton; all other candidates were
ignored in the amended writ.
Mr.. Campbell then submitted the follow
ing demurrer:
Now come the defendants by their at.
torneys, Hiram Knowles and Thompson
Campbell, and demur to the amended writ
OF mandate here on the following grounds
to wit:
First, that the said writ is ambiguous,
uncertain and unintelligible in this:
TLoA - loas Mt n1oo rlu onnQQr in aQl0
writ what election returns the said defend.
ants are required to count.
That it does not clearly appear Tor what
Office the said relator was q candidate ior
at the election specified in said writ. -.
That it does not specifically appear by
what authority the said election Yves held
That the said writ does command the de-
fendant board to count votes for offices
having no existence in law.
That as far as the relator ia concerned nc
has a "plain, adequate and speedy remedy
at law" and his relation in these proceed
ings shows that he is a candidate Tor dis.
trict Judge for the second judicial district
composed of the said county, and that his
said relation is in his capacity asking Tor 9
remedy to enforce a public right common
to all citizens.
Second, that the said writ fails to state
facts sufficient to be replied to.
Judge Knowles made argument and held
that the territorial canvassing board wal
the only proper body to makea o.
the vote for district Judge, that office being
a territorial office, no provisions having
been made for the county board to canvass
the vote for any territorial officer save
that of delegate in congress. Ground wal
also taken that the writ commanded the
board to canvass the vote Tor officers Wne
had no existence, namely, general as
semblymen," which term was used, when
it should have been Legislative assembly
men," 4,
The court oyerruled the demurrer on al
grounds, holding that the constitutions
Convention had acted under a delegation
of power from congress in calling the cleo
tion. and that the terms as used when 70
ferring to the members OF the Legislature
was a clerical error. Exceptions wer'
taken and noted.
Mr.. Warren, OF counsel for relator, nov
asked that the court issue the peremptor!
writ OF mandamus.
This request had the effect Of bringing Mi
Camnbell to his feet who then o the de
fendants' answer to the alternative writ o
mandate. The answer was o general ant
s~weepipg denial OF all the allegations sc
forth in the writ. Denial was tina
a vote had be n cast Tor Mcf1atto'
| and Hamilton; that the return
came in by mail and were properly seaieo
that the returns were made out propefl.
and according to law that the return
were duly certified to; that the return
were upon proper blanks; that the relate
would be defrauded by throwing ou tn
vote: that the returns sent by mail wer
real returns, but only what purported U
he the returns; that the tally sheets wer
kent by the clerks OF election. The nm
aver also set forth that the board uPo
examining the pretended return rom Ire
cinct No. 81 came to the conclusion tina
the returns were not genuine, an.
that the clerks did not DO tnel
dnty in failing to part:ctpat
ia the count OF the vote. The afidayit 9
seven Republicans had been submitted wn
swore that they had voted the RepublieA
ticket while the purported returns Shows
only three Republican tickets to nave peg
voted. and that some OF the candidate
~ the legislature had received more vote
than were shown to rave been cast py ~
%nnrnor;ed returns. These and other ai'
aotions were made in tue answer, finale {
Which was a request for dismissal OF tn
writ. sv.- voc co,
lcInded the court announced thaG q req
would be taken until $3.50 o'clock 1n
morning in order to give the attorneys =