Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-10-30
LEGAL BATTING.
Gentlemen Learned in the Law
Argue Points In Mandamus
Proceedings.

ne So Far Honcrs About Evenly
d Divided-The Real Fight
a. Begins To-Day.
q From Mondays Daily.
OF the many interesting cases which
have been tried in Silver Bow county,
probably none has attracted more wide
9 spread attention than that which began in
the district court yesterday morning before
Judge De Wolfe. By the time the Judge
took his seat the room was filled with o
curious and deeply interested crowd OF
Q men representing every calling and profes.
sion in the city, and as the case proceeded
the throng became even greater, until
: every available inch OF space was occupied
and many had to leave without obtain
: ing as much as a glimpse into the court
room.
Judge De- Wolfe. after announcing that
! the venire of the grand jury was not re-
turnabie until next Monday, asked if any
VI ~ ooSoAhCJ6 PACoCuU q duy LuOUlOu
to offer. Thompson Campbell stated that
he had a motion to offer in the case of The
People Of the Territory ex. rel. J.J. Nc
Hatton. vs.. W. M. Jack, W. Il. Hall AID c.
e. Irvine, the board Of ap-
pointed to canvass the vote OF
the election held in Silver Bow
county, October 1. 1889. The motion
was for a dismissal OF the pending action
against the canvassing board. The motion |
was made By Thompson Campbell and
Hiram Knowles as attorneys for the de-
PENDANTS for that purpose alone. The !
ground upon which the motion was made
was The writ of mandate was nota writ
at all but merely q pretended writ, not
having been made out in the name OF any
sovereignty, authority or government, in
that it read The People of the Territory
OF Montana" whereas it should read THE
Territory OF Montana" To refresh the
courts memory Mr.. Campbell read the
petition and affidavit Of the ~relator, J. J.i
Mediation, and then the alternative writ
Ut mandamus in which the canvassing ;
board was not Only ordered to count the
vote OF Precinct No. 81 with reference to
the %relator, but also as to all the other
candidates as well. Counsel then made |
argument in support Of the motion and
gave a lengthy and exhaustive history OF
the origin and application OF writs of man.
damus and said that no matter in what
country such writ was issued it was ~always
done in the name of the sovereign, govern
ment or state. The present proceedings, g
Mr.. Campbell said, were made to SAVIOR as q
a great public necessity as court was con. t
vened a week before the day originally set +
which to hear the case. He then !,
quoted from numerous authorities in sup Il
port OF the motion, contsnding that y
the court could not issue the O
writ in the name OF 1.-THE .
Of Montana Territory" as ~
the people OF the territory OF Montana "
were not a legal entity. 1t was only 1.-THE p
Territory of Montana" which existed as q b
legal entity and the statutes requir ID that a
an action of the nature OF the one at bar d
be brought In the name OF the terri d
tory and asked the court to dismiss the t.
writ because of it's illegal heading. n
Judge Mcconnell, one of the attorneys q
tor the %relator, could not conceive how t.
counsel Tor the defendant could make any G.
between The People ofthe Terri sc
tory of Montana" or 1.-The Territory of b,
Montana" Every writ lie had ever seen "
in the name of the people. He then to
asked leave to amsnd che writ by striking hi
'ut the words THE People OF the" so as to de
cave the heading "The Territory in behalf St
IL. Notation" To this Mr.. Campbell or
'eplied that in that cas-, the writ would m
lot lie. Judge Mcconnell then referred to th
similar case tried in the courts of Florida du
nd said the writ there had been issued in nc
he same manner lyo
Judge Knowles, for the defense, held that at
nasmuch rs the territory OF Montana was ar
My a temporary form OF government ma
by congress the government did no
OF emanate from the people but from the his
eneral government and as a writ must is thu
Ne IN the name OF the government, it was is
necessary that the heading Nc
loud he 1.-The Territory of Montana" wit
being vested in he territory iail
nd not in the people. In the case of a lea
government it would be different for OF
lere the people would possess sovereignty
over. He also quoted ~eopiously from
srious Authorities and said such writs we're 7
vt amendable.
Here the court announced as its i'm. T.
ession that as the territory of Montana lug
10 created by organic act, and in the ab- Cha
nee OF all legislation on the subject under mai
such writs should run in the hov
OF the territory as such was tie ap. -.
llatlon given it under the organic act. II non
unset desired to present more authorities suce
: court was wiliingeso grant ample time. trait
70 matter was purely II technical one. IT,,
{ technicalities had to be taken into +a -
4 haen ottanL.J 10 " ia". Inc writ Octt
MON that the position Of defendants an;s
insel was well taken. %;nL,
Kirkpatrick-'There can be no doubt hhSsnn'
h0 M. al DOdl
w of tha ;mot;.. W "nhenu' anu In the
love that the court amend the writ nv 1T
king out the words the people of the vas m
'be com. ..TS th;. 80 as tc
movies and Campbell-"It u.s." uG iM
then. gentlemen, I will hear VIII W.,
uments and authorities" Won
ming the mover os to- ~ u STATUTES evide
nroceed;pos IN 1900 Ioui' u amend An
oes and ;ns;stod tsat " correcting made
he'd w;tb Tho nowa, - ~ Cour1 was of all
Il asked nv The relstor " Ii amend tify t
Knoxles contanJaa withc
no such authority as was commended ," .e;a,
noe as was osLod; IN ~ naAe such q Silver
O substitnte an ant;,aIn 5;e eolo "ouio Russo
emea anomaIons 70 e tne o WITT. 10 him %, 90
ne OF one party ami then For
q IN court to be told that it was some for IL
else VINO mad made the command. troub
're tne court decided to take a recess than
= o'clock in order to give both parties consul
opportunity to present authorities in you W
'ort OF their respective motions. ease, G
zen court reconvened Mr.. Toole. of CURE
seI lot reiator, began argument in favor and CT
mending the writ as asked, and j. c. s
touched upon the matter all
heading. of the writ and was "
the opinion that it made mol
'ence whether the writ was made in ~
anne OF the people OF the TERRITORY or
Q name OF the territory itself. Thai ~
interrupted him by intimatinp ths ~
have been issued in the manner
tained by, defendants counsel. M
D then read from the statutes giving -
. au.nority to make amendments OIL aE
should not affect the substant;sI
OF the parties at interest and to- -