The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-10-30

OWING 70 tue liansltlNt hlNif NAitN NhAH
territory now finds itself in, the constitution
of the statutes Is such as To leave the de-
fendent remcdiless.
Leaving this ground of his motion IN that
state. he proceeded to consider the
third ground thereof, which was
To the effect that the presiding
Judge was disqualified 10 act IN this
case ON account of the interest which he
had and has in the result Of the litigation.
Mr. Campbell stated that he had number
of authorities, which he would read, pertin-
ent to this question, which would show that
under the circumstances his honor
was disqualified by reason OF interest.
and also because Of the fact that at
the time Of the issuance of the writ no Of
fetal returns had been made by any legally
constituted authority, or coming from an
official or authoritative source which would
make il apparent that at that time he was
not elected. This. too, taken in coniunc-
tion with the fact that the mandate of the
writ directed the respondents TO count the
votes cast at precinct 81 for all the candl-
dates balloted for, which would necessarily
include himself. and from the interest
which defeated candidate would have IN
keeping the majority by which he was de-
feated us low as possible, this was an inter-
est which disqualified.
In reply to this Judge De Wolfe spoke as
follows; "In regard 10 the proposition Of
interest il is useless 10 cite authorities ON
that point: il is so elementary that no Judge
can act in AN adjudication of any matter in
which he has any interest, however slight,
that TO state proposition of TINT kind in n
court of law is sufficient without reference
to authority; and if | have any possible
interest whatever of any nature ar form in
this proceeding, that disqualihes me from
sitting in this case. OF course. there are
certain conclusions which |. az an ndivid-
ual, might know. one Of which IN, that ] am
defeated by large majority, regardless Of
the fact as to whether the vote of the pre-
cinct that is here involved IL thrown cut or
not; that is a matter that is known 10 me
Hs an individual; but what | can take
notice of judicially may he a different mat
ter entirely. And there is another PROPOSE
tion connected with that matter which ]
thought of yesterday. and in fact before.
While | might have no practical, no real
interest in the result Of this suit,
yet il might he said for the puraose of ar
gument. that might have an interest in
/ having the majority against me reduced IA
: low as possible, and that personal pride in
4 having that majority as small as possible
would So affect me as To disqualify me from
acting. do not say whether there is or
not, hut in regard TO the main proposition,
that judge cannot sit in Judgment upon
any matter in which he has any interest
whatever. whether direct or remote. ! con-
cede with counsel for respondents fully IN
the matter: hence il is unnecessary 60 pro-
duce authorities ON that proposition whether
| can take judicial notice. sitting here ~ n
presiding Judge of this court, of matters
that are well known to me as a private indi-
vidual. or whether | can use private knowl-
edge possessed 10y me as AN individual IN
governing my actions while sitting here M
a court, il n matter about which
II have aome doubt. The ques.
ton then il whether can
take judicial notice of the fact that am
defeated regardless whether this precinct il
counted or not: and | will state Ia counsel
that they need not be deferred from any
sense of delicacy because am sitting here
and ask that they avail themselves fully
of the proposition, independent Of that
will stute that my general views coincide
with the proposition that has been stated
| that cannot sit here as n court and make
an order that will affect myself in any man.
ner or form. and 10 that extt mt am dis
qualified. Hence will listen TO argument
in relation TO section a59 of High ON extra
ordinary remedies as to whether writ
could be maintained in part and refused IN
part: whether the alternative writ must be
1OllpNft uN tut IltffinllibiN VIII VI NHtluti
the alternative writ may be nuliiied by the
peremptory writ in this case. ! do not think
TINT can sit here as n judge of this court
and order count of the votes that were
east for me.
Recess WAS then taken until o'clock and
upon the reassembling of court Judge
Mcconnell took the floor and inquired il
the court WAS ready t0 hear argument.
from their side on the question ol dsquali-
iication. judge DeWolfc reiterated the
views expressed in the decision above given
aud stated that while lac WIS legally sntis.
fled that he had no interest Ia the result OF
the pending contest which would act ns d
disqualification. yet his doing ~ where. If Il
perempiory writ issued, il would result IN
the counting of votes cast for himself, would
be an indelcacy and that the judicial cr.
mine might not he tainted with the slightest
suspicion be would feel reluctant to act nj
this iunciure. Judge Mcconnell then made
an application 10 amend the writ 40 that
the mandate TO count the votes would be
limited 10 the relator, and with an over.
wheIming array Of authority fortified The
application.
This brought Judge Knowles 10 his feet
To oppose the application on the most tech
nical and trivial grounds. After the CON
sumption of about an hours time the mnt-
was given 10 amend.
A recess WIS taken for fifteen minutes ia
permit the amendm MT 10 be made and IN
its amended form II was again objected Ia
by Judge Knowles, who moved 10 dismiss
the writ because IL did not agree with the
order of the court. This, however waH
found not TO have been the case, 50 the mo-
tion was oyerruled This impediment re-
moved, Mr.. Campbell again resumed his
argument on his motion, which had been
interrupted by the incidental proceedings
above referred 20, but finding that the only
matter left for him O. debate upon was the
disqualification of the judge by reason VI
interest, and that being removed 10y the
amendment 10 the writ which was allowed,
he submitted the matter to the c0utt.
The attorneys for the relator, considering
the motion absolutely meritless, and un-
worthy serious consideration, did not deign
reply, but were willing that the mo-
tion might be passed upon by the court
without argument. The motion was over
ruled 10y the court. and il was expected that
this would be "A termination Of the dilatDry
proceedings. and that without further de
lay the merits uf tue case might be reached.
But not so when the court had finished
his decision, MIR. Campbell filed demur-
rer 10 the amended writ, which rends M iOl
lows: Now comes the defendants by their
attorneys, Hiram Knowles aud Thompson
Campbell, and demur 10 the amended
writ Of mandnte herein on the following
grounds to-wit: First. TINT the said writ
is ambiguous, uncertain and unintelligible
IN this. that IL does not clearly appear IN
said writ what election returns tine snid
defendants are required 10 count. that u
does not clearly appear Of
~ - al n a..