St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1889-10-29
LUCK is AGAINST us.
Republicans Score First Blood
in the Montana Contested
Election Case.
They Pick a Flaw in the IT,
tie to the Writ of Man.
damus.
Judge De Wolfe's Competency
to Hear the Case Is Ques-
toned.
Argument on a Motion to
Quash the Writ Will Be-
gin To-Day.
Special to the Globe

Sp6Cldi 10 TIE GlODS
BUTTE, Mont, Oct. 2S.-This was the
day set for the return of the writ Of
mandamus Issued by the district court
at the instance of j. j. Mediation, Dem
Ocratic candidate in the recent election
for the Office of district Judge, and COM
manding the canVassing board of Silver
Bow county to canvass the returns
from Precinct 81 or show cause. In ad-
dItiOn to almost every lawyer of note in
Montana and some of the most promi-
nent men in the territory were present
when Judge De Wolfe opened
the session. EX-Gov. Rauser,
Hon. Sam Ward, Maj. McGinnis,
L. c. Powers, A. J. Seligman and scores
of other noted politicians were present
The Democrats were represented by
eX-Chief Justice Mcconnell, Judges NJ.
StapletOn, W. T. Penbon, Warren
Tool and VI. Kirkpatrick. The Re
publicans were represented by Thomp-
son Campbell and Judge Knowles. the
first move was made by Campbell on
behalf of the respondent, the board of
canVaSserS, filing a motion TO dismiss
this action on the ground that The writ
of mandamuS was no writ since it did
not issue in the name of any authority,
government or sovereignty known to
the law. in that it read "rhe people Of
the territory of Montana" and not
TIE TERRITORY OF MONTANA.
Campbell then proceeded to make an
argument in support of his motion. He
stated that in this case Mediation was
found appealing for writ of mandamuS
on behalf of the people of Montana.
This court could not issue writ except
in the name of constituted govern
ment. Mediation applied not as can
didate in private capacity, but as all
the candidates. The Montana statutes
required that such an action be begun
in the name of the Territory of Mon
tana, and not in the name
of the people of Montana. Camp
bell then read authorities in support
of his position, and urged that the court
dismiss the writ. Judge Mcconnell for
Mediation, said he never knew of a
writ of mandamuS issuing in any other
form than in name of the people. II
there should be anything in the point
raised by the defense. he would move to
amend the writ by striking out the word
people" Campbell informed him that
the proposed amendment would not lie.
Mcconnell referred to celebrated
Florida case of similar nature. and
said the writ there had been
issued in exactly the same mat
ter. The court held that since the
writ had been attacked he felt con-
strained to rule that the writ should
have issued i'll the name of the terri
tory and not of the people. Kirkpatrick
urged that the writ could be amended
by striking ont the words ''people Of"
Campbell urged that peremptOry writ
of mandate could not be amended. An
alternate writ of mandate could he
amended, but not as to parties. Kirk
patrick argued that the error was
merely mistake III the title, and tine
court, therefore, had right to amend it
and read directions to the effect that
the hrSt name of party to proceed
ing of court might be corrected if mis-
take had been made. He said that the
intention bad been in the writ to deSig-
nate the sovereignty, and there was
merely mistake in the title. 1t was
not more Than mistake i'll the corporate
name of the company which could be
amended. The court then ruled
that the people of Montana and
the territory of Montana were
substantially the same and it had evil
IDENTIFY been the intention to invoke the
sovereign power 1Ie mistake lie neIO
had been only in the title and not In
identity. He therefore held that the
WRIT COULD BE AMENDED
as asked by the attorneys for Mediation.
Campbell made the following motion in
answer TO the amended writS:
Now come the defendants by their attor-
neyS, Hiram Knowles and Thompson Camp
bell, and appearing for the purpose of mo-
ton only, move the court to quaSh and set
aside and discharge the amended writ of
mandate on the following grounds. TO wit:
First, that said court has not jurisdiction of
said defendant board of said defense. or of
either of them, on the following
ground, to wit; First, that the writ is
made Teturnabie at an earlier day
than the return thereof authorized by law:
that there are two other writs other than the
one here now in force commanding this same
act to be done and performed by the same
defendant as herein and returnable at an
other dav TO wit: Nov. z, A. d. 1859, before
the same court, same judge. and now forth
with. Third-That the judge of said court
was at the date of issue of the said
writ therein by him wholly disqualified from
acting as such judge and issuing the said
writ because of his then interest in the pro-
ceeding To enforce the same. Fcurth-That
the judge of SAID court is now wholly dis
qualified from acting rs such judge in the
hearing hereof or making any further or
other order herein by by reason of his inter
est in the result of the proceedings herein"
Campbell then asked for time to prepare
argument on the motion, and the court ad-
journed until tomorrow morning at 10