Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-11-02
GAINING IN NYHRHST.
proceedings of the Second Day
in the Great Mandamus
Contest.
Important Amendment Made
In the Writ of Mand-
date.
Nrom Wednesday Daily.

From Wednesday Daily.
The second day Of che great mandamua
case opened clear aud bright yesterday
and although at the opening hour OF court,
10 o'clock, the crowd was not quite 80
large as on the proceeding day, only a
short time elapsed before the room was
hacked even more closely than during any
time Monday.
The 6rst nov in the proceedings was a
motion by Mr.. Campbell to be allowed to
insert the word "order" SO as to make a
norton Of his motion to quash, filed the
~nrsyious day, read ''of the order OF said
writ" No objection was offered and the
insertion was made. Argument on the
motion was begun by Mr.. Campbell, who
took up the first ground OF the motion,
which was that the court had no iurisdic.
ton OF the defendants because the writ
was made returnable at an earlier date
thar was authorized by law. Sole reliance
on this proposition was laid upon
the practice act by defendant coun-
sci, the court having ruled the day
before that no difference existed between the
action pending and any other action in tie
same court. The practice act requiring
that ten days be given in which to make
reply to complaints, and the writ in ans
wer to which defendants were appearing
was issued Oct. % and as they were re-
quired nv order OF the court to be present
Oct. % to answer TO that writ a violation
OF the practice act was apparent. Tie stat
utes were referred to the provisions ofwhich,
counsel argued, were clearly in support OF
the position Of defendants. According to
the courts previous ruling the writ occu.
pied the same relative position as a SUM
mons and as the court would most GER
tainly Quash q summons mad returnable
before the statutory time, 1T could not
very we'll refuse to guash the writ without
violating a ruling OF the court.
The second ground OF the Motion to
Quash, THAT there are two other writs,
other than the one herein now In force COM
manding the same act TO be done and per-
formed by the sane defendants az herein.
and returnable at another day, to-wit:
Nov. z, A. d. 1889 before the same court,
same Judge and now forthwith" This was
the principle ground OF the motion, Mr..
Campbell said, and the one chiefly relied
upon to secure allo vance OF motion. Posi-
ton was taken that the REALTORS were not
parties to the suit; that they applied, not
for personal benefit, in that they asked, not
for q counting of the vote cast for one per.
son, DuU ULdt oil NOUcb tdbu a. uhC
precinct in controversy be counted. Posi-
ton assumed by REALTORS was that OF a
party giving information for a public pros
ecution, and therefore the public was made
the plaintiff in the peEdiDg action. The
original writ commanded the board of can
vassers to count the vote OF Precinct No.
81 before November z. How could any
one know that the board would not take
such action before hat date? The other
III, ao,,nl nnrn nnIu nm Qffnrf fn fnrrn
defendants into court before the time
which the law said they should appear. In
each OF the writs issued not only the rights
OF the relator were asserted, but the terri
tory as we'll was made q plaintiff, conse-
quently no private rights were in consider
alton, and therefore the defendants could
not be compelled to appear in court before
the time fixed by law. Counsel also took
the position that il consideration be
made OF the fact thaD MIR. Mediation APP
FLIED for the writ both in h private and
public capacity, then the writ would be
void and could not lie. Recourse to the
authorities was then had, n Mr.. Camp
bell quoted from them voluminously in
support Ci his position.
The third and last ground OF the motion,
relating to the court . disqualification from
sitting as Judge in the hearing OF the case,
nv reason of interest in the results OF the
proceedings was then taken up. Numer'
ous authorities existed, Mr.. Campbell said,
TO support that ground OF the motion, and
he would quote some OF them.
Judge De Wolfe said that he did not care
to hear any authorities on that question,
as the proposition that a Judge was dis
qualified from sitting on any proceedings
before him in which he wal in any way IN.
terested. was entirely clear to him. Interest
al a Judge in the result Of q case, however
remote, wa q bar to his sitting on the case,
: His honor did not believe that he could
AID judicial cognizance OF the fact that he
vas Dictated in the recent election, because
he had not been officially notified OF tina
fact. Even though as a private citizen ne
might be cognizant OF his defeat by a large
iudicial copnizance. Admitting that he die
take cognizancs of the fact OF his defeat il
might still be considered that he was inter
ested to the extent OF reducing the majority
aoainst himself. Taking everything into
confederation, Judge De Wolfe said, he was
frank to say that he did not feel himself
qualified to sit on the case, as he had q
deIicacy about a~dudicating any case IL
which he might be supposed to nave eVeI
the remotest interest.
Alter this announcement by the court Mr.
Campbell began citing from High on ex
t~raordinary remedies. Counsel aid par
ticuIar stress upon section B OF tina,
antbority in support OF his argument tina
the writ of nandamus could not be dlvldec
al To the parties interested. holding that
the court could notissue q mandate ts tne
ca~nvassing board to count the vote Gas'
for the candidates oil district luoge III IRE
cinct No. "a. as the order was TO can'as'
all of the votes cast in the precinct. :,
The iudpe here announced that he would
listen farther to counsel for defendants OF
that noint. but would state that he was o
the oninion that he could not sit on tn
casa Tor the reasons already given. II nov
heing almost II o'clock the court an
nouneed that q recess would be taken unit
/ O'clock. and refused the request OF MI
Campbell to make it 2 O'Clock.
Afternoon Session.
r. VAS a few minutes after 1 .o'clocl
when Judge DeWolie called the court q
order, Judge Mcconnell asked the court
ba des;red to hear the counsel for petitione
a. to the disqualifcations OF the presldin
;ndoe to ait in the cause because oil q res
-, s,,nosed interest. Judre DsWolfe agai
remarked that it was not only the duty 9
q ,udoe TO avoid the commission OF
wrong. Init also, the the semblance OF II
Ha had been a candidate himself and wnii
in a private capacity he knew his and
dacy would not be affected by any ruin
~ Sac;sion which he might make lnreiatio
~ the tunnel precinct, yet the position wa
an embarrassing and delicate one; so muc
so, that be would mot lent entertain to soS a p."is C
n e. ~ -canyassers to count the vote cas-
for or AGAINST himself at the tunnelp recine
.Judee Mcconnell argued that Judge "
Wolfe WAS not disqualified from hearin
the writ because private information {
his defeat for the Office for which ne wa
a candidate was a matter Of which CHI ne sn " =
bound to take judicial notice; But ' Sas
DeWolfe positively refused to neg
tSe writ further alter Republican cou II
ground Of interest. This led Rsmoe Sx !,
ts%ri;neasiop, 80 that it's operation woul
be confined to the interests OF ). ). Mcha
ton only; that that Is, the .m msis o The @i Soa,d =
canvassars to count the vote cast Tor M
MeHatton at the tunnel, to the exclusio
M1