Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-11-12
THE CONTEST CASE.
Judge Anderson Renders His De.
ciSion IN the Matter,
FINDING FOR DEFENDANT.
His Honor Briefly Reviews the
Surrounding Circumstances.

son-Allen school election case,
which has occupied the court for
some days past.
His Honor, in the outset, ex-
pressed his regret that he had not
had time to prepare a written opin-
ion in this case, but explained that
owing to the pressure Of business in
the courts-one case following an
other in such rapid succession-it
had been impossible for him to do
so.
By the official count, he said, the
DEFENDANT Allen, had a majority OF
fifteen votes. The plaintiff contested
the election Of the defendant, sub
stantially upon the first and fourth
grounds provided by the statute, his
ground for eontesting the first being
the malconduct of the board Of
judges, or any number thereof, and
the fourth ON account Of votes.
1t had been shown that in poll
No. 3, bingham precinct, thirteen
illegal votes were cast for the de.
PENDANT. Ii was very evident 10 his
Honor's mind that some Of those
persons, IL not al Of them, were prac.
ticing direct fraud. at least seven
OF the men, he thought, whose
names were on the registration Ast
came forward and testified that ttsJ
we're not there on election diy; tha'
they lived away from the place anu
therefore were not legal vOteIs. But
their names were still on the reg s.
trstion list somewhere, and some
other persons appeared and. person
ated them, and voted. Then
the balance OF the thirteen
men whose names were on the
registration list had not been sum-
mOned to the court, to testify as
witnesses, but the evidence showed
that they were not at this place on
election day. Perhaps 1t was not
shown 50 conclusively; but he
thought it established the fact that
they were not there-that the per-
sons who voted were not authorized
to do so. OF course IL was possible
for several persons ofthe same name
to be living in the voting precinct,
and especially in a precinct such as
Bingham, with n mining popula-
ton whence people came and went.
He thought the evidence showed,
however, that at least six Of the
thirteen votes were Illegal, and bore
a very strong suspicion IL, indeed,
it did not establish the fact that at
least one of the judges knew quite a
considerable number Of those thir-
teen men whose names were reg
istered, and that when those per-
sons came up TO vots he knew they
were not the same. OF course It
might be that he dill not know they
were not Of the same Christian aud
not the persons OF the same
name whom he had previously
known. Therefore. taking is all in
all, added his Honor, l think the
evidence shows that these thirteen
votes were illegal, and should be
deducted from the number thai the
defendant received, on the official
count.
Now some votes had been gained
by error in counting; he could not,
just then, state how many, nor did
he deem 1t necessary TO examine
them particularly; but he seemed 10
remember one for the plaintiff in
Bluff Dale. His reason for his not
thinking il necessary for him 10 go
over these and take them out now
was, that the election mast turn
upon whether or not the rejected
votes at South Cottonwood were to
be counted for the plaintiff. II they
were, he thought IL would go TO de-
eide the election Of the plaintiff; if
they were not, then the defendant
was entitled TO retain his seat.
He believed it was conceded that
Of the eighteen persons at Murray
before referred 10, and claimed to he
legal voters, two were not entitled to
vOte-Green ami Wolfiey. 1t sssmed
hardly 10 be contended that these
meR were legal voters
The question was whether votes
could be counted in favor OF a can
didaie when the votes were not east.
Section 1851 Of the Complied Stat
ules says:
''NO irregularity or improper conduct in
the proceedings Of the judges, or any o
them, n such mAlconduct as avoids an eiec-
ton. unless the ia igaant OF improper con-
duet Is such a. 10 p-ocu the person whose
n. ht TO the Office u contested % be declared
elected when he had not received the high
est number Of legal votes"
The next section runs thus.
"when any election held for an Office
exercised IN and for \ cOunty - contested
on account Of any maicOnduct on The part
Of the board Of Judges OF any precinct ciec-
u n, or any member thereof. the electi11
carnot be annuled and set asi Re upon any
pIoof thereof. uaiess the rejection OF the
vote % such precinct or pre- 'incts, wonld
change the result as to such once IN the
remaining vote Of the county,"
Now was IL malconduct OF the
judges at M1rrIy 10 refuse TO re-
ceive the votes Of men whose names
were not on the list? Was it their
duty to receive them? Were they
confined 10 the registration
list, or might they receive
the votes Of any 20 son who came
up and showed that he was n legal
voter, offered 10 take the regulation
oath, and rendered his ballot. Our
law, continued his Honor, in regard
to contested elections, twas substanti-
ally the same rs that in California,
where it hal been held that votes
not cast cannot be counted, and they
even say that the claim that they
should be is prepOsterous.
He quoted the language used by
the court in the case Of Webster VS..
Byrne (si.h California, P. 2T3), rs
follows.
.The court below erred in counting 70.
contestant the supposed votes OF Gonsalves,
Larkln and haos. under the pretence that
they would have voted for MIN had they
been allowed to vote In all contests Of TINS
char .cter the question Is which candidate
received the highest number Of vote-s The
idea that the supposed votes OF persons wno
sIid moi vote, bal VIII could have voted had
thew taken the necessary legal steps 10 en-
titie them 10 do 50 should De counted foi
me candidate fer whom they would have
voted, is simpy PTeposterous."
In Kentucky, also, in the case Of
Newcombe w. Kirtley, the sam
was held. In that case the judge:
closed the polls before tbs TING. AND
some two or three who futended q
vote testified that they wouEd have
voted II the polls had been open. Al
was claimed, therefore, that theii
votes should have been counted
because 1t was no fault OF theirs that
they did not vote. But the courl
ruled that only such votes should
be counted rs were actually cast.
His Honor was aware that in cleo
ton contests, in the House OF Rep
resentatives, in Congress, and under
some other circumstances, n diier'
ent rule prevailed. Here 1t was
shown rs a general thing, that II a
person entitled TO vote was deprived
Of voting. his vote should be counted,
but legislative bodies had the right
to determine for themselves WIN
were the elected members. But 50
far as the courts were concerned,
= ..x.ha-f,,, h.A haan cited To him