Deseret evening news. [volume] (Great Salt Lake City [Utah]) 1867-1920, 1890-02-18
The Complexion Of the Next
City Council.
DECISION BY JUDGE ZANE.
He Says COuHeilmen and Justices
are Elected from Wards
eivike rat People SIX MEM.
seHs OF THE COUNCIL.
The "LiberaIs' VIII Appeal IN.
Case 60 the snrrcune Court.

supreme Court.
In the contest for the Fourth pre
cinct city officers, argued yesterday
Judge Zane made the follawing a..
cision this afternoon,
tvok Territory. The 7Atrd ns.,r,.,
Court, February Term, 1889.
Richard w. Young John +
smith and William J. Tuddenham
plaintiffs. ". Elijah Sells, defend,
ZANE, Judge.-This is an applsca.
uon ior writ OF mandsmtis 10 COM
pei the defend-.:. to issue certifi-
Gates OF election to the complain
1t appears from the plaintiffs,
Petitleh and the answer Of the
7 defendant that the defendant was
duly authorized to canvass the vnt.s
cast for the Various eantitdatt< nj tbs.
municipal election held in Salt Lake
City on the 10th instant, and to de-
clare the result and 10 isslIe certifi-
Gates OF election 10 the persons re-
ceiving the higheee number.
The paw provides tor the election
OF Three councilmen from each of
the five municipal wards. 1t also
appears that the electors of the
Fourth Ward voted for Fix persons
and that the electorr Of the city out
side Of that ward also voted FOR the
Same persons; that each OF the three
plaintiffs recsivees ssealer number
Of the votes o. The electors of that
ward taan any of the other
three persons voted for, but
that the latter three received
more Of the votes OF the electors
ofthe entire city than any of the
plaintiffs; that the defendant hav-
ing 50 found from the canvass de-
clarcd the three receiving the
greater number II the Votes of the
electesE at large elected, and that he
refuses TO issue certificates of cleo
ton 10 the plaintiffs, the three re-
ceiving the greater number of the
votes Of the elections of the v--c.
The first question q. this case in
the order the Court will consider
them i OF the ward. Assuming
that the councilmen should be elect
ed by the voters, had the defendant
the discretion to declare the three
men receiving the least number of
the votes Of the electors Of the ward |
elected, and TO issue certificates to |
them and TO refuse 10 isste certificates |
to the plaintiffs, who received the |
higher number. The ordinance de-
clares that upon the receipt of the
ballot boxes and the returns The |
canvassers ''shall carefully examine
the returns, and il no irregularly or /
discrepancy appear therein, affect
ing the result Of the election of any
candidate, they shall accept said
returns ~ correct; but il the right of
any person voted for, for any Office,
is in any way affected then the''
canvassers "shall open the ballots
and canvass the same, so far rs to
determine the rights Of the persons
whose soiiice may be affected.
They may also cause 10 appear be-
fore them any person
whom they may deem proper,
and take their testimony in relation
TO said election; there is nothing
before the court showing that any
irregularity or discrepancy in the
returns appeared to the canvasser,
anu without this he was bound 10
accept them as correct. Revised
Ordinances Of Salt Lake City, ISSS,
sec. is, p. lis. Section 10, same
mage, declares that after the compile
ton of the canvass the canvssser
shall declare the result and imme-
liately make out and transmit n
Of election 10 each person
elected, IT an irregularity or dis
:repancy appears in the returns the
.anvasser doubtless has some dis
,retion in making the canvass; but
when ne has reached 4 result lac has
no right TO declare the person re-
,eiving the fewest legal votes elected
and to issue a certificate to him; he
must give a certificate in that case
10 the candidate receiving the most
egal votes, II he is qualified to hold
he office; the qualification of the
plaintiffs are admitted by the plead
Iugs. In the case OF Ellis vs.. County
Commissioners OF Bristol, . Gray,
575, the court said, Chief Justice
shaw delivering the opinion Of the
court ''But we are satisfied that
il is competent for this court
on this writ, at the instance Of
he prosecutor, to inquire into
he facts and to require the ;
county commissioners TO do what ii |
was plainly tGeir duty TO do, and
what it is stilllin their power 10 do,
o declare and certify, If such was
he fact, that the prosecutor had the
highest number .. votes fer the Of ,
tice."
In Clarke vs.. Mckenzie, etc, ,
Bush p. 52S, ALDER; IL. Clarke and
lanes o. Ellis were rival candidates
or the Off &C OF Judge oftheC Christian
county court, and on the day desig-
mated by Law for that purpose, WV.
then the county Judge.
md L. NJ. Buckner, the county
clerk, organized As an examining I
board for the purpose of comparing I
he polls. And in consequence Of
he rejection by the examiner OF an ,
unattached and unsigned paper, the I
certificate OF election was given TO I
Ellis, and Clarke applied for a writ ,
# mandamus TO compel the board {
o count all the votes polled and to {
Ssue &c him a certificate of his [
'lectiOn, and the lower court re- I
used the mandamus. But the [
supreme Court held OH appeal that a
was the duty Of the board to COM /
'ute the votes cast for the several s
and 10 issue certificates y
( electicn TO the candidates receiv- Y
ne the highest number Of votes, d
nd also held the fact that the G
card had acted and issued I
certificate to candidate c
Tho had not received the v
ighest number, furnished no reason a
Thy they should not be compelled to d
sue q certificate to The one who +
ad. In the case of Vallejo VS.. Fay. I
D Cal. $40, the court held that the
Ipervisnrs had n discretion in a
,aking the canvass, and denied the
lit. The court did not hold that
Ne board might refuse n certificate g
, the person receiving the highest Il
lumber OF votes as shown by the =
lnvats. :
A further question raised upon
lis application for a writ Of man.
ate is: Does the law require the
,uncilmen to be elected by the
ectors Of the respective wards or d
Y the electors of the city at \
rye?
The Supreme Court Of this Terri :
rv at the January term of the a