Butte semi-weekly miner. [volume] (Butte, Mont.) 1886-1890, 1889-11-06

Droper the duty OF the court was to uuas
the whole. By reason of theerounduof th
demurrer it appeared hat the court ha,
exceeded ths limits of its legal Obligation
and the writ was, Therefore, absolutel
void. The original writ OF mandate coul,
not be amended.
1.-THE so.called misieinder, IL the cour
plesse," said Judge Kirkpatr,ck in refuta
tion lis OF no consequence whatever. TIL,
laws OF procedure have undergone such
thorough reformation in recent years tina
all technicalities used to obscure and OBJ
struct progress have been swept away,
He further contended that all persons hav
inga commoninterest in q causeha q rich,
TO appear jointly and have that interest
determined in one action. In the present
instance there was q concurrent interest In
q common cause since all the REALTORS were
similarly affected by the common wrong
As to the point that Mr.. Booth was made
q correspondent, there vas no cause for
cavil, because that gentleman had not OBJ.
1ected to being made a party to the writ
and furthermore nc one present had been
authorized to enter an objection for him.
$50 lar as regards q common interest in
the relief demanded, / think there can be
very little question: remarked Mr.. Toole.
II think there h very little doubt Of
that" was the courts acquiescence.
MIR. Toole quoted the statutes to prove
that n OF the prescribed duties OF the
county clerk was tomake out certificates
OF election for legislative candidates as
well as for those on the county ticket.
At this stage OF the proceedings occurred
a long and rambling discussion as to the
duties OF the county clerk under the stat
utes, ami his powers and those OF the state
board of ~anvasser under the new cOnsti-
tuition aud the Enabling Act. Judge Nc
Connel took the ground that under the
statutes and the state ordinance there
vas justification for making Mr..
Booth y respondent. As to the REALTORS
joint interest he commended that they were
concerned not only as candidates
but as electors.
Judge Knowles announced hat there
was q similar question in Dakota, as to
the recognition OF q county clerks Ncertif-
in the care of state legislators. The
held that a county clerk could not
such as were members OF the legisla
lure, and that only the state board of can
vassers had authority to certify to the
OF officers OF the state.
Again a discussion took place as to con-
1icts between the statutes and the consti- |
;ution and the Enabling Act and as to the |
light Of congress to repeal state laws. To |
Indicate the drift of the argument Judge |
Do Wolfe's remark is sufficient. He said: |
we are fast coming around to
ne broad doctrine OF state rights"
Judge Knowles resumed the argument
hat the interests of the respondents wers
lot concurrent and asked il the court
Vould entertain the idea of one writ to
ompel the county treasurer to pay q num-
'er of warrants for different services. There
7ere two causes Of action. one OF them not
q relation to the subject matter.
The court cut of all further argument by
to Section Is of the Montana
ode of procedure and to Pomeroy on
Headings and by declaring that there had
cen shown such a concurrence OF interest
1 the case of the REALTORS that their cause
as q common one. In the case OF Mr..
the court wasof the opinion that the
Dunty clerks right to demur a vested
olely with him. "The demurrer is over
lled" was the dictum.
Messrs. Knowles and Campbell gave no.
ce of their intention to file answer and a
'cess was taken till 2 o'clock.
The Afternoon Session.
Soon after the opening of the after dinner
'ssion Judge Mcconnell asked permission
amend the writ by substituting the
ord Legislative" for general" where the
tier referred to the assembly. An acri-
onious discussion, which followed, closed
Judge Mcconnell and MI. Camp bell +:
reed with each other to an amendment OF !
% writ q q like amendment OF the ]
eadings.
Judge Knowles then fled respondent's
lswer, which was Identical in all but
ines of respondents to the answer fl ed u
the respondents in the case involving @
McHatton's vote. The answer was @
omptly objected to, and Judge Kirkpat- t
* asked permission to file at q future q
ne and before next Wednesday an addi- c
NAL affidavit by Judge Caleb e. Irvine. d
an affidavit by William e. Hall rela- e.
% to respondents ~counsel's right of &C. o
N in the proceedings. "
The court then announced hat he would b
e on the matter as he bad ruled ON the O
swer in the other case, that of McHat. %
q. "a p%eremptory writ of mandate will b.
ne and the attorneys will prepare the Of
recess was taken and at 4:3O h,
lock Judge Knowles presented a copy OF a
undertaking for appeal. together with a ii
nd n the sum OF $500. bf
The clerk may note that q COPY OF the
lertaking for appeal has been presented
1 held under objections OF relator. Is
re anything more, gentlemen?" 10
here was nothing more and the great h,
cases were at rest until next -
dnesday. In