The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-11-01
JUSTICE STILL PREVAILS.
The Voters at Tunnel Precinct Re-
stored to Their Rights as
American Citizens.
Judge DeWolfe Issues an Order
Compelling the Canvassers
to do Their Duty.
An Appeal Taken and Stay Asked for
which VIII be Decided by the
Court To-day.

BUTTE, Oct. 3l.-[Special. l-At the open
ing of court this morning the court room
was well filled by persons evidently anxious
to hear the decision upon the mandamus
case of Mediation, which has occupied the
attention of the court for the past three
days. Those who have closely watched the
proceedings and understood the law appic
able TO the case seemed satisfied that the
decision of the court could not be other
wise than favorable TO the relator All of
the cases of similar nature decided in
other states and which were called 10 the
attention of the court, unequiyocally con-
frmed the position that the canvassing
board was a ministerial body, and was de-
void of any legal authority to investigate
the question Of the alleged fraud which IL
was claimed was perpetrated at precinct "a.
Republicans. honest in their convictions
and not blinded by party prejudice, without
reluctance admitted that the decision
should necessarily he favorable to the dem
ocrats. and that the action of Jack and
Hall could not possibly be sustained.
At precisely $50 Judge DeWolfe assembled
the bench, bearing in his hands the manu-
script of the decision which he was about
TO render in this now famous case. After
the reading of the minutes had been dis
posed Of preparatory to rendering his de-
cision, the Judge said that the time in which
he had to prepare his decision in this case
was so limited, and the attention that he
was able TO bestow upon il must of necessity
subject it to unfayorable criticism ON nc
count of its crudeness in some respects, and
he would reserve the right TO revise and
correct il in respect TO phraseology and COIL
struction should that, in his Judgment be-
come necessary. The decision in full ia as
follows:
JUDGE DE woLPE's DECISION.
The relator, j. J.. Mediation, in his affi
dayit and petition for the alternative writ
of mandamus, alleges, in substance, that,
at the election held in this territory, ON the
LIST day of October, 1889, he was candidate
for the office of district Judge of the second
| judicial district. and received 333i votes for
said office, against his opponents 3i75 votes.
| That the votes So received 10y the respective
| candidates was exclusive of the votes cast
at precinct 81 in said comfy: that at the
| last named precinct. III votes were rlst for
| the relator, and only three votes for iheoppo-
site candidate; that if the votes east at said
precinct "a had been counted. the relator
would have had majority of q votes. over
l.. j. Hamilton, the opposing candidate for
said Office of district Judge.
| Tho refitinn furflar alliance that tl,a m
turns of the vote cast at said precinct "a
were duly returned to the election can
vassing board of said county. 10 wit: the
said Jack, Hall and Irvine, but they refused
| to count the same and make abstracts there
of MS required 10y law, and by reason thereof,
and unless the same are counted aud alb
stracts thereof made, the relator will be de
feated for said office Of district Judge to
| which be claims To have been elected The
prayer is for an alternative writ of man
damus TO compel the canvassing board TO
count the votes cast for reatOr at the pre-
cinct named, or to show why they have not
done SO.
After some preliminary motions as TO the
| form of the action, and demurrer To the
writ, which the court overruled, two of the
members of the board. Jack and Hall. filed
an answer, i'll which they set up several diff
| ferent causes for not making an abstract of
member of the board Irvine, also filed n
separate answer. in which he alleged his
willingness and desire to count the vote of
said precinct, and was only prevented from
doing 50 by the refusal of his colleagues TO
join him in said count
| The question presented for the decision
of the court is the suificiency or INSULT
cheney of the cause shown TO justify the
action of the majority of the board in re-
lpptiug tha vote nf gail prpGiuct
The causes assigned in the answer may be
briefly summarized as follows:
First-They deny that the relator re-
ceiyed III votes at precinct 20 and his op-
ponent only three votes.
SecOnd-Deny that the returns from said
precinct were sent or received by mail.
Third-Deny that the returns were regu-
lar. and in substantial compliance with
law.
Fourth-Deny that the returns contained
the proper tally sheets or names of candi-
dates voted for or the number of votes re-
ceived by each candidate at full length set
forth as required by law; or that they were
returns Of said precinct "a, or that the re-
turns were certified M required by law.
Fifth-Deny that the returns were ON
proper blanks.
Sixth-Deny that il could he ensily as
certained from the returns the number Of
votes and for whom cast.
Seventh-Deny. that the reator will he
defeated for said Office by reason Of the re-
fusal of the bonrd TO count the vote of said
precinct.
II also sets up several matters ms an affir-
matiye defense, in refusing 20 count the
vote Of said precinct. Most Of this ailirma-
tive matter IL Hn amplhcation, in mn aflir-
native form, Of what had been already de
MED; but, in addition, IL also states or al
leges, that la votes were cast at precinct
b. and that the returns and names Of the
voters were not written down by the clerks
of election. and the certificates 10 the re-
turns. and the attestAtiun Of the judges, ,was
not IN conformity with Inv.
The answer then continues as follows.
THAT tbov the canyassing board were
instrustrd by law with the duty OF determ-
ming what were the returns of the votes
from said precinct -. That, in performing
this duty. they examined what purpurted 10
be the returns froP said precinct and what
were presented 10 Them ~ such returns, and
determined thnt they were not the returns
of the votes az said precinct
Then follows some allegations IN regard
10 some aitidnvits obtained by the board
which is not deemed necessary, for reasons
hereafter mentioned, to consider in this
decision.
In deciding upon the sufficiency Of the
cnuse here shown. n IL necessary In the