The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-11-07


Subscribed and sworn 10 before me this
9th day Of November. 1889.
WILL l.. CLARK. Notary Public
Arguments on the question then began by
Judge Mcconnell reading an affidavit of
the third member of the Canvassing Board,
Cable T.. Irvine. This affidavit was to the
effect that at no time had the Canvassing
Board held a meeting for the purpose of
employing counsel. II Jack and Hnll had
held such a meeting no notice OF II had
been given 10 the affiant and the meeting
must therefore have been olandestine and
illegal. Afliant himself was ready and
willing 10 obey the mandate of the court.
Judge Mcconnell then addressed the court
and said that he would make NO extended
argument. He did not question the author
ity of MIR. Campbell and Judge Knowles TO
appear for Messrs. Hall and Jack person-
ally. He did, however, question their au-
thority 90 appear for the canvassing board
rs a board. lie said the rights of the plain
tifls to take this position WAS not affected
by the fact that they had waived the right
TO challenge the authority OF the counsel IN
the previous proceedings. They were will
ing for the counsel 10 appear for the board
for the purpose of defending the action of
the board, but not for tine purpose of ap-
peal He wished 20 take the
position that where parties were joined
in a judgement one of them could not APP
peal without the consent of the others. He
said that he would contine himself To that
ground entirely, leaving the questions of
right TO appeal from decision IN regard TO
the issuance Of n peremptory writ of man
date and the supersedeas question to his ns-
sociates. He then proceeded 10 read sever
al citations which he convinced the court
were in point and bore out his statements.
Judge Mcconnell spoke for an hour with
great force and energy, dwelling on the
fact that no resolution of the bonrd Of can
vassers had ever been passed authorizing
the employment of counsel.
Judge Knowles followed and took the
ground that the Judgment of the court WIS
entirely personal To the canyassers; as n
board Of canyassers they were not III exist
ence and never did have the right to employ
counsel. Individually they did have the
right TO defend their official acts. Accord
ing to law the canvassing board had NO
power whatever TO do anything except
count votes. II they had passed a resou-
tion TO employ counsel, or 10 do anything
whatever except Ia count votes. IL would
have been without warrant of law.
Mr.. Kirkpatrick of the democratic coun-
sci, then followed with most conclusive
and eloquent speech, which evidently made
a great impression on the court. lie showed
tndt tIt w hht ilbHt VI
appeal on writ Of mandamus all came
from California courts, where an erroneous
precedent had been established which had
since been recognized as such. There were
no Montana decisions in point which could
influence the court. The court had the un-
questioned right and duty, in the absence
of precedent, 90 interpret the statute for
himself. He dwelt strongly ON the fact that
that story of proceedings in this
case would operate TO the entire defeat of
the parties whose rights the court last
week decided must be respected. Were n
stay of proceedings pending the appeal
granted. the offices of the relators would
have expired before the appeal could be
acted upon by the supreme court. Mr.
Kirkpatrick's points were strongly and
forcibly made.
At the conclusion Of his remarks Judge
DeWolfe announced that court would take n
recess until 7 p. m.