Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-11-09
Judge DeWolfe Says So and the
Full Count Had to Be
Made.
A, Peremptory Writ Must Be
Obeyed and Appeals
Don't Go.

handed GOWN MS Oeciblous WuICu u SiNon AZ
full below. The point involved in the
controversy was one that, to ordinary
mortals, appears simple and lucid, but
counsel for Republicans sought to obscure
and muddle il beyond the hope OF solu-
ton. It was whether or not they could
appeal from O writ OF mandamus issued
by a court OF competent Jurisdiction.
Counselfor the REALTORS logically maintained
that the right Of appeal did not exist in
such cases, and significantly asked counsel
for respondents how courts could enforce
thier order and maintain their dignity II
such q construction were placed upon the
law.
Intense interest was manifested in the
case, and long before court convened the
court room both inside and outside the
railing was crowded with lawyers and eager
spectators, some anxious and Others cur
;ous to learn the result. The leading lights
of the Republican crowd did not sport
pleasing facial expressions, but moved
about in an owlish, sullen, dispirited way
that implied coming disaster. They held
frequent and Earnest consultations, but
apparently could arrive at NO satisfactory
conclusion.
When Judge DeWolfe entered the room
and strided toward the bench the busy hum
OF conversation ceased and all eyes in the
room conferred Upon him.. The Judge, after
taking his seat, calmly surveyed the aud.
fence and then verbally delivered the fol.
lowing opinion, denying the motion to ap-
peal:
In these cases / have not had an opportunity to
examine the various authorities cited and re-
ferred to by counsel; and hence, inasmuch as /
stated at the adjournment of court last evening,
that l would decide this question htsmorning, l
must decide 1t as well as ny recollection Of the
authorities and my view of the law will permit.
1t is not necessary for me to review what was
done in the matter. The court, in its ruling
heretofore made, held that the duty imposed by
law upon this canvassing board was purely a min
isterial ons-in fact, 1t was scarcely more than
clerical; 1t was as simple as the addition ofa
column of figures. They, in disregard of what
the court c~onceives to be their plain duty under
the statute, went outside the limit of their au-
thority and assumedt to judge of the nature of
the returns, and whether or not the proceedings
had been, in every respect, In conformity with
The court held that this was beyond the
province of the canvassing board, aud, hence,
granted a premptory writ of mandamus, requir-
ing them to count the returns from this, precinct
~, for the ~relators in these cases. From that
judgment of the court two members of this board
have taken an appeal to the supreme court of
the territory and have asked a stay of proceed |
ing until that appeal be heard.
Now, many questions presented by counsel
are, no doubt, interesting as legal propositions:
First, whether this is q Judgment in the regular
action at lsw, or whether iG is q Judgment in q
special proceeding, or whether an appeal and q |
special supersedeas lies in a case OF m~andamus |
that can be reviewed on appeal or whether 1t
should be taken advantage OF by a writ OF error.
ALI these, and various similar questions, have |
been argued fully and deliberately by counsel;
but / do not conceive, with my view of the law
Of these cases, that 1t 10 necessary for me to de-
eide any of these points,, and 1 shall leave them
to be determined by a higher tribunal than this
court.
different standpoint-having held as didhereto-
fore, In granting = peremptory writ OF manda-
mus, that this poard transcribed its o in
the action they took in casting out the returns
of this precinct-the question presents itself
then, should q board, constituted according to
law for the performance of q simple duty. be al.
lowed, by an appeal, to defer the rights OF
parties, and thus ~obstruct,, as ! may say, the en-
tire wheels of government by their proceedings?
This is the point for the court to decide.
Not only do the REALTORS in these cases have
rights, but the public have rights; the REALTORS
are entitled to have the returns counted for them
as they were sent to the board OF canvassers;a and
the people have the right to have the men who
are elected uPiSn I1e fac ,S Of the nsE lstnrns' at least
A0AOC q sAoAA oAcos /
The law provides another way by which those
who claim to have been injured by fraudulent
votes, or by proceedings that are not in con-
formity with the law, by which all these ,hings
can be brought up and determined:
In these cases the competitors of the REALTORS
have Q perfect right, and the law affords them
the legality of the votes cast at that precinct, or
any other precinct in this county, notwithstand-
ing the fact that the canvassing board counted
them; they are all subject to examination and
rnviaW- and and if any of the vQta6 cast wara /
illegal, there is q way of determining that fact,
and a way of determining what were and what
But in this particular case I cannot conceive
! cannot belisve-thst it was ever the intention
of the Legislature, that canvassing board should
determine matters of this kind.
Iii needless for me to say what would lie the
effect of granting q supersedeas in these cases.
These ~relators in the last case, candidates for the
Legislature of the State of Montana. If the GER
tihcate were issued to them which should issue |
If the votes of this, precinct No. S4, which were
improperly rejected were counted, would be en-
titled, prima facie, to seats In the body to which
they were elected. IL they are denied those
seats, of course the certificates would be issued
to their competitors In the election.
Certainly the member of each house are the
Judges of the election returns and qualifications
Of It's own members. But to say that a mere
ministerial board should have the right to de-
determine questions of this kind is a matter that
was never in the contemplation of the legisla-
ture; and 1t would be so manifestly wrong, in
my opinion, to stay proceedings in cases Of this
kind, that this motion to grant q supersedeas in
Whatever may be said IN regard to the action
of the board in regard to the right of a majority
of the board to appeal from the decision, upon
these cases, that a supersedeas should not be
granted, and that this writ should be made per-
emptory and should be obeyed by the parties to
Mr.. Campbell-In order that no misunder-
standing may occur, I desire to state to the
court that we withdrew the motion for super
sedeas, and stood upon the appeal bond that we
that the writ was to remain in allegiance until it
was decided by the court whether or not the
appeal bond would operate as 2 s1persedeas.
The court-A peremptoryw writ is, of course,
peremptory, as the very title of the writ defines
itself, and is a command to the canvassing board ,
to count the votes cast at Precinct 81 for the re-
I understand that these writs were withheld
this decision, and the ruling of the court
will be, now, that a peremptory writ Issue in
aid intend to write an opinion in this case;
but, having decided the main point heretofore, q
and, as the membe . OF I'll the b. bar well know. e
court, 1 think I will not file q written opinion in Z
these cases. !
During the delivery OF the writ the most ! !
profound silence was maintained by the :
but ut it's close, when it's tenor l
D. d import became known there were men I
the room who felt like giving vent to
DD6lr p6uU up ouOOlOuo ny d you tudU WOulQ |
have scaled the paint off the furniture,
while there were other, and those who were A
to a man, who longed to seek
The solitude OF q vast wilderness and cuss
oy notes and octaves.
The writ was at once issued and put in =
;be hands of Sheriff Lloyd, who delegated q
Jndersheriff Themes to serve it upon Caleb C
.. Irvine and William e. Hall, members A
II the county board OF ~canvassers. Hall .
vas found at Walkerville soon afterward, y
and trotted down to the Office OF y
he county commissioners It was ~
o William one OF the most sorrow. a
I'll and reluctant trips Ut his "
xistenee, but he had to toddle right along, 4,
lst the same. He looked mad, sad and =.
and when ushered into the room,
asst suspicious glances toward the win.
ows, as though mentally balancing the
OF physical disaster that would
blow q leap to the ground outside. Evi. W
emily the conclusion was not Unsatisfactory, n,
with a deep sigh he deposited his cor. r.
orosity IN the table and resignedly M
waited the logic OF events. Soon after eli
ard Judge Irvine, the Democratic member T,
I the board, arrived, and with q repug. be
ance and displeasure he could ~notconceal, M
r. Hall yielded to the DEGREES OF adverse Ca
Ite and assisted to count the vote from of