The morning call., 1890-11-22
CLUNIE'S PETITION.
A Scheme That Travelled cup a
Flue" in a rt.R00m.
Judge Wallace Has Denied an Application to
Contest the Election OF jeremiah Il.
Mahoney as Senator.

A futile effort was made yesterday by An
drew j. Clunie to contest the election of j.
III. Mahoney as Senator for the Twenty
fourth District. On behalf of P. j. Murphy
the defeated candidate, Clunie handed to
Judge Wallace a petition to appoint COM
mission to take the testimony of Leland
Stanford, whom, he charged, had by means
of agents and employees caused several hun
dred fictitious names to be placed upon the
register of voters previous to the recent
election.
The Judge at once mastered the contents
of the petition and rendered the following
opinion:
Tie petitioner alleges that he was at the late
election a candidate for seat in the Senate OF
The State; that j. II. Mahoney was his competl-
tor: THAT the petitioner expects TO be party
plaintiff 10 action IN the Senate OF the State OF
California against said j. II. Mahouey, which
said action will be brought by petitioner for the
purpose OF contestiug the election Of said j. Ii.
Mahoney member of the Senate OF The State
of California" etc.. The petition then sets iol III
that Leland Stanford Is a witness material and
necessary in the proposed contest that lie ex-
poets TO prove by said Stanford that he, through
his agents and employees, caused VARIOUS aud
suDdIy fictitious names amounting" as peti-
TONER alleges upon lis information aud belief,
40 several hundred" 10 be placed upon the
register OF voters in the Senatorial district In
which The petitioner was candidate, ard that
al the election held on November All inst. said
Stanford caused the said fictitious names to be
voted in favor OF said j. II. Mahoney by divers
persons falsely ard frauduIently claiming said
fictitious names TO be their true and lawful
names.
Tie petition sets forth various other corrupt
and fraudulent practices resorted 10 at said
election for t.le benefit OF the candidacy OF said
MahOney, which lie petitioner alleges he can
prove by said Stanford that the latter committed
aud caused 10 be committed through his agents
and employees; also thai Stanford Is about to de.
part tie Slate and Will not return until after The
"a 9 NJ
An order is asked that Stanford be now exam
ined as a witness, pui.uant 10 The proylslons Of
the Code OF Civil Procedure (Section 20S3 Ell seq)
and that L designate some ofiicer before whom
the proposed examination Is TO be had.
But upon careful consideration of the peti-
ton ana the statute upon which II purports 10
proceed, l conclude that this Is not Il case in
which such an oider would be one authorized by
law.
The statute refers 10 the rerpetuatlon of testi-
mony In an action, and while tile petitioner
styles his proposed contest for the seat in the
Senate an action" do not think II such in the
sense intended by The code referred TO.
i am convinced that the provisions OF the code
refer only Ia civil actions as provided Tor in the
same code. Those contemplate the usual ad.
versary prOceedngS-in short, .suit" In a
court Of justice-the establishment CT some fact
mattel l, or which may become material 10 es-
tablsh, though no suit may al the time be antici-
Ialed, or, if anticipated, lie may not know The
parties 10 such SUM-" etc. ISec. 2oS4. sub.
q. The fact TO be established must be one
Which would be material III suit anticipated at
the time, or In suit even not so anticipated,
should such suit afterwaId be actually brought
or waged.
In a court In this State [Sec. 20S3. sub. u
The factum probandum must be one which Is or
may become material i'll a suit, anticipated or
unanticipated, In a court OF this Stale. Here
the controversy Is one Which belongs not to
court but 10 the Senate OF The Staie-tbe sole
Judge of the qualfcai ions elections and returns
OF It's members" [C0n., Art. 4. sec. u.
The Seuate is not a court or the Sate-woUld
not be court in considering and determining
the propose contest between the petitioner and
MahOneY. NO part OF the judicial power Is
vested in lie Senate, except when "sitling as
4 court OF Impeachment" lldem. Art. W.
Sec. H.
The deposition Of Stanford even were 1t taken
here, would no doubt be excluded by the Senate
because not taken after the filing OF a verified
statement Of the ground upon which the rei
toner put his contest for The seat, taken be-
fore the Two designated justices Of The Peace
required by The Political CODE (Secs. IA
and 275l.
In short, tie contest anticipated is not judicial
in its nature, but political. and therefore reg
ulated by the Political Code, aud not by the Code
OF Civil Procedure.
The application 10 appoint commission 10
take the testimony of Stanford must, therefore,
be denied, aud IL Is SO ordered.
After hearing the opinion Clunie asked
and received permission to withdraw the
DetitiOn.