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

tsEmins what was the trus and iseL sots east
what shey were re1nired TO do was TO detefinin
showed upon this subject. "a. IL hss R ave- DO so risS
to 60 behind these abstracts th y have nd rieh
to assign. as Q reason for not canvassing the tFu
abstracts, that there was an Illegal and frando
If such an Issue was Flowed 70 be raise,
when the question was WHISTLER an election o.
hcer should canvass or not election returns
g sss e. iu sansle Of s s%Isstie g. mi sesn' raise s0 X
same Issue. ahd there would be a elog upon on
whole pol .tical system. Oficers, whose duty b.
law it L. to canvass returns, have no other lega
B Elm the province OF the procesdings in man
damus TO compel them to go behind the RETURN
and determine the actual legal vote cast, 80 the!
them. as officers. ss a defense when they are re
quired to do what does concern. them, az of
fcers. under the provisions OF law"
Language more apt and pertinent to the cas-.
cannot add to its force or hope to initiate IL
terseness and precision. The ~soundness OF tn
legal principle 1t states Is equalled by the clear
ness and precision with which the principle Il
stated. But, If there were no decisions, either o
| our W or other courts, on this question, thu
1 persons, composing, or who may, under GU
1 statute, compose O. canvassing beard, show,
think, conslusively, that 1t was never the inten
ton Of the Legislature to confer upon them any
power but the plain and simple one OF counting
the votes a. shown by the returns, aud making
abstracts thereof. The board itself Y floating
and transitory and may be composed Of thret
out Of any number Of county officers: The chair.
man of the board Of county commissioners, OF, IN
his absence, any member ofthe board OF county
bate judge, or any justice Of the peace In the
county, and one other county oftcer, constitutes
this board. The selection Of the board may de-
volve on anyone ofthe three men WHO are at the
sioner, has @ carte blanche to select whoever else
he pleases to act with him. provided only, thai
one Of the persons selected Is o probate judge or
a Justice Of the peace, and the other some county
Can it be that the Legislature ever intended to
confer on O boagi, chosen in such q manner the
important ard delicate duty OF deciding on the
ton of counting or rejecting votes cast ct any
election? The proposition is too absurd for be-
lief, and to PROFOUND the question is to answer
all public duties, and the one that comes nearest
to the rights aDd interests OF ever. Citizen, ts
thus left to. an uncertain and shifting board
composed like an election canvaseing board. u
the duty Of the canvassing board is, AMPLY to
make abstracts OF the votes, a. shown by the ne
turns, it obviates any necessity OF inquiring
them to say or determine whether the clerks
Of election performed their duty as defined by
lestations made b. the judges and clerks werein
due form OF law, or whether the clerks, with
own hands, entered the names of the vot-
srs on the tally sheets, or suffered someone else
urns of the election were transmitted in the /
prescribed by the statutes, or rvached
hem In 9 different way. Some, or all. Of these
nay be important questions. and the t Lay Pro.
may be raised and decided; but they are not fol |
determination OF acanyassing board. Again.
quoting the Language OF Judge knuwles, In the
" law lie to canvass returns have no other legal |
iuties than these to perform; and, as 1t would
lot be within the province OF the proceedings in
to compel them to 90 behind the re-
they can not get up what In law does not con-
'ern thems as officers, as Q defense when they are
equired to do what does concern them, ss
Ulcers. under the provisions Of iaM:. 80
we're cast at precinct 81. I am at Q loss to know
this ia t could appear exceptby the returns
which q majority OF the canvassang board re-
rom necessity that the returns were sufficient to
the canvassing board to ascertain the
cast, and for whom cast, and this was suf-l
icient to enable them to make. the abstract of
he votes required at their hands. This admis7
ion Of the answer also negatives the allegation
hat 1t could not be easily" determined, from
he returns, the number Of votes cast, and for
,aoM e seams casT. ~ m hsvs baa EASILY ascsr asGestai9 9er tS or
qrpose of q pleading, and as q defense against
that the law enjoins az q public duty; and IT
sefui for such a purpose. why could not the
lsking abstracts Of the votes cast at the pre-
met in question?
No reason has been stated or can be imagined,
ny. if the vote could be ascertained from the
'turns, it should not be counted by the can
board. Many other interesting ques-
have been presented in the argument of
e case; but want OF time prevents their con-
1t follows, from what has been said, that in the
dgment of the court, the causes shown in the
,swer are not sufficient to justify the refusal of
e. board Of canvasssrs t. OBEY the alterna1iys
william X. JJacis. William e Hail and Caleb
Irvine, commanding them to make the alb !,
esed IL IN the the aHsSs sass w IGt b sa,a te1a' Sra az Cd. j
IF the court pleases, !" began Mr.. Camp
80 soon as the reading ceased, 1--WE !
,cspt the judgement and give notice Of an
VERY we'll" replied the court. /.
II hope that our exception to the ruling !
the court will be noted?" said Mr.. Camp. !
H.. . I
Before any answer further than "Yes, !
:" could be made to that request Judge I
movies said: II would ask your honor I
fix the amount Of bonds for a stay t
proceedings" s :
Mr.. Toole-"I would like, il the court d
BASE, to be heard on that subject" 9
There was then a running fire OF talk
the written copy OF the judgment 9
the court and the court signed the per. v
lptory writ Of mandate. The judgment Y
erein reads s iollOws. o
cause coming on forahearing upon
Q REALTORS motion for judgment upon o
Q petition, order and writ and answer q
d return Of defendants:' It is ordered, u
and decreed that said defendants n
d no power nor authority to exclude :,
ID Precinct No. "a and that their action u
srein was Illegal and void and that the o.
'urns, including said precinct, constitute
!, true and correct result Of said election, d
d that 9aid relator have his peremptory
It OF mandate as prayed for in his petit .
n and recover his costs and disburse- OF
in this behalf expended" m
he order promulgated 10 in the following m
rds: AZ ~ oi
Therefore, we command you that. i'm. b
diately after the receipt OF this writ, you ca
emble and count the votes Of said pre. mi
Il, No. "a. and ali the votes Of all the oi
OF said county and make all w
per and legel abstracts thereof for said da
ce OF district judge" 1- re-
fter a recess Of hali an hour, taken to give un
,ondent's counsel time to prepare an pc
lication for appeal, Mr.. Campbell Of tu'
d to file an undertaking with T. G. mi
yer and Patrick Conlon as sureties in o.
sum Of $500. i; fol
ldge Kirkpatrick objected to the filing dit
expressed a desire to be heard there Gin
q.
The Afternoon Session.
gument on the question Of appeal op- Tn
the afternoon session and, in fact,
the attention Of the court throughout VI
o 1.-THE day. Judge Knowles set
ball rolling. claiming that the motion for
ppsal followed the laws ofpractice. He ~.
led Wood on Mandamua- An oxom;p. oA0