The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1889-11-07
ARGUING FOR AN APPEAL
Judge De Wolfe viii Render a Decision
on the Question this Morning.
yesterday. Procsssitnv~ in tbr MsHstt"M
Case at Butte Were slse .AttOrneys Au-
shsrissss tS Appear f"r the BEARD
EFT GmnSas-er>.
spectral To standard.

spectral IT, III" standard.
BUrrE. Nov. 6.-Tln, court was slow i'm
getting at the uiand,n,i~ proceedings to-
day. II was Has o'clock this morning
before the grand jury had been disposed
of hy thu. court. Judge DcWolf" u"rn
called for argument on the question III
appeal from the decision of ia" court ~
rendering "a decision Tor "a I"rcuiptorS
writ. Thompson Campbell said that MIR.
Halls aiiilavit WAS not y.t ready. Mr..
OJonncIl S,r,j',tc,I to proceeding with the
argument, until the siiii,iavits bad been
read, ia order that The counsel might
know wla, was before them. Adjourn
nr,nt was accordingly taken until O'Clock
this afternoon. At that hour. Mr.. lamp
bell reported that Mr.. Hall was busy
changing his clothes aud would hav" to
delay th. court "a little longer The court
accordingly took up the work of preparing
- panel of trial jurors
Al a::D o'clock tile man,ianhs procc"d-
iug- were once more, under way. The
question w.,s ON the authority of the ,"-
Pendants to appeal. An affidavit was read
from Caleb T.. Irvine. one of the canvass
ing hoard. stating that no meeting NJ the
hoard has been held since the pretended
rauvas~ing of election returns on Oct. IA;
that no action imd been taken 10y the
board authorizing tho appointment OF
counsel for the board m the present :t'-
ton or in the appeals; that the alliaiit had
received no notice. of a; meeting al MrssrS.
Jack and Hall to take action ar agr'a. tn
employ counsel in the matter; nor had
one. wtrsI fbsrn S;tlu To- mn sttfDift tanning
action of tho kind.
Thompson ~Campiell's affidavit rccitcd
that at 2::D D. N. ON Oct. Ia. W. Nj. Jack
came To his oiiicc AMI stated that an al
tentative writ of InaIIdarn,Is had been
served on the hoard. that he desired the
atliant tn take charge at the ease and of
all Unnecessary in III. premises.
w. T.. Halls Affidavit stated that he was
present AT ~ meeting OF the defendants on
October Is: that they Were. served with a
writ of mandate; that then AMI There. Jack
and aiiiant in the pr''>.iic" OF MIR. Irvine
and within his hearing discussed as tai ron
s,lting and retaining an attorney inr-
gard to the proceeding. and concluded Ia
takc tl' necessary steps To- defend: that
MIR. Irwin" was present ana made no OBJ
lection at that tim" in any way; that the
board ;L..u took "a recess until 5oscio'k:
that during Ia, recess tiiinnt saw IhoinIi-
son Campbell aud ratified a.c retainer Of
Mr.. Gam pi.ll az attorney.
JuIg" Mcconnell opened III" argument.
He said that ih''I' was ma question: al the
authority of the .,ttIrn'y " Ia appear for
Mr-srs. Jack aud Hail. 'nit ia" question
was as :" their authority !" appear for
til" board of "anvl~Err-. IT
tncl,. had been "a regular
meeting tn winch TIA" third member
had been properly notified. then tn" ma
jority might have, taken action To- defend
the writ: then Ties" attorneys would have
the right to appear. But the action of the
majority without motto" to IA. minority il
null and void. Tn" canNassing board
cannot act except when assembled to-
geticr as "a board. and all action and res
olutioIIs were void when tn" minority was
not notified To b.. prsssnt. M'ssrs. Hall
| ana Jack tuiiIu not ;thtiiprtZt "a tlcts'usc To
this proceeding without giving MIR. Irvine
notice. and an opportunity tn lc heard.
The affidavit of MIR. Irvine showed that
te was not present when any such action
WAS taken. while that of MIR. Hall was to
show that he was present. One afiidavit
must offset the other. and tI. burden at
proof rests with tho defendants tai show
that Mr.. Irvine. was present and did hear
tho alleged action.
judge. Knowles replied that the boa rd
could not act as "a board. for the reason
that the action was not against the board
as ~ board. hut against the board as indi-
vid,als. The general rule AS to the action
of "a majority applies tai corporations, pub
lie aud private, but not to u body of the
character Of a canvassing board. lie
quoted authorities to show the writ of
mandate * against the person and not
against the. office. The duty rests ON the
party personally. The suit would bs
against tie. parties individually. The
board of county commissioners can la
sued in i'll board name. because tLn. stat
ute. allows il; but theirs, il uostatutc allow
ing the board to he sued. Tir. board does
not perform its duty as a board. but a.
citizens.
judge. Fitzpatrick said that in the Nc
Hatton case the defendants lille - bond
and appeal for the board of cauvasScrs
They evidently do not know wl.ry tIrN
are standing in this ease. In tho caS. al