The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-11-01
Attest:
Clerk.


STEPHEN DEWoLrE, Judge.
Attest:
--, Clerk.
The attorneys for relntor considered that
no appeal could be made in this case and
no stay of proceedings could be secured
under the law. Both sides being desirous TO
collate authorities and anxious TO obtain
time to prepare arguments bearing upon
the issues which discussion Of this ques-
tion would involve. recess was taken un-
Ill l o'clock.
The court again convened al ! O'Clock,
but owing to the absence Of Judge Knowles,
Mr.. Campbell was unwilling to proceed in
his absence. A recess was taken for fifteen
minutes, so that AN opportunity might be
offered 10 Judge Knowles 30 present an ap-
pearance, Upon his arrival the question as
TO the right of appeal WAS taken up.
MIR. uRKrATIucK's ARGUMENT
Mr.. Kirkpatrick-W contend that in this
case no appeal can be taken which would
operate as stHy Of proceedings. In the
first place we maintain that no authority IL
vested in Messls. Campbell and Knowles 10
prosecute this appeal, because no action
has been taken 10y the canvnssing board,
officially looking 20 the taking uf an appeal
in this caso,and before this can bo done, and
before the lnitatory steps are here taken 10
make this appeal, II IN necessary to show
that 10y some action Of the canvassing board
an incentive 10 take this step must have
been acted upon aud authorized. | have
here the affidavit of Caleb 4. Irvine. one OF
the members of the oanvnssing board, IN
which he sets forth the facts that the can
yassing board disbanded after majority of
the board had refused 10 accept or make
abstracts from the returns of precinct -,
and since that time no meeting of theia has
been had; that undoubtedly after the dis
bandment Of the board, one of its
members, Vim. M. Jack. left the territory
and has not returned thereto since, and that
he is now beyond the jurisdiction of the
court. That Mt no meeting of the board
WAS this matter considered or acted upon;
that he an n member of the board, did not
desire an appeal taken from the judgment
of the court, but on the contrary he was
satisfied with the decision of 1he court and
would carry the mandate of the writ into
execution in ~ far IA he was affected. We
hold. continued Mr.. kirkpatrick, that un-
der these circumstances and under the aver
ments in this affidavit, that there liz here
wanting the power or authority 30 prosecute
this appeal.
ron THE OTHER sfDF.
Mr.. Kirkpatrick was followed by Mr.
Campbell. who stated that he had been
practicng law for the past fifty yenrs aud
that this wins the first time that his authori-
~ 10 appear in court of justice and take
such steps as the exlgoncios of case in
trusted To him demanded was questioned
ln this cnse he desired Ia say that authority
WAS conferred upon him by jack and Hall
individually, when he was retained IN
counsel by them and nc his request he was
sworn So that these statements might bo
made under oath. ! claim. continued Mr..
Campbell, that THIS authority is sufficient
and ample enough 10 authorize the action
which We have taken III this ease in the
matter Of appealing.
Judge Knowles next followed and called
attention to number of authorities, prin-
cipally decisions of the supreme court of
California, IN which nm appeal lay from "A
perenptOry writ Of mandhmus under n stat
ute similar 10 the Montana one. He con
troverted the correctness of the proposition
advanced by Mr.. Kirkpatrick that il re-
quired some action of the board or a ma
iority thereof 10 authorize legal action 10
be taken involving the official action Of lis
members, and that under the statutes of
this territory providing that certain apeci-
fed persons should perform certain duties,
such persons acting in conjunction did not
constitute n bonrd. The right of appeal
under the law WIS unquestioned, and such
being the case, a stay of proceedings WIS
secured by the statute until the case could
be heard and determined ON appeal. This
appeal could be taken Ht any time within
twelve months after the date OF the rendi-
tion of the Judgment upon the filing Of an
ind .afaat a
duly executed, they now had in court and
were ready TO file.
MI. TooIE's Address.
Mr.. 1oole made the closing argument in
behalf Of the relator. He said lilat If the
position taken by counsel for respondents
WAS correct, then il WIS in the power of any
canyassinR board 10 deprive any one elected
20 Office of the right 10 enter upon the
duties Of that Office 10y appealing, as in this
case and filing THE indemnity bond. Mr..
Toole then cited numborless cases which
were directly in point, holding that an mp
peal would not lie in ono Of this kind, and
showed by reference 10 the statutes of Cali
fonia that the decisions of the supreme
court Of that state, upon which So much re-
lance had been placed by Judge Knowles,
were based upon statute which expressly
provided that appeals would lie IN man
damus cases and tbnt until the enactment
of the statute, IL wns uniformly
held by the supreme court of the state that
appeals were not allowable. He said that
there would be no session of the supreme
court of the territory until January. and the
$500 bond would not be- sufficient security
To the relat0r for tho emolumens of the
Office 10 which he had been elected, and
should the judgment of this court be-
affirmed, his only redress would be against
his opponent, who, during that time, would
receive the emOlunonts Of the Office. Mr..
1oole then proceeded 10 discuss al lenpth
the legal status of the oanvassing bonrd,
and insisted that no official action had been
taken 10y the board regarding this appeal
proceeding. Mr.. Jnck was beyond the inris
dicti0n of the court and not amenable 10 its
process, and II could not for moment be
maintained that any action taken by him
Continued ON Eighth PnFe