The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-12-10
LEEcA CASE IN COURT.
The Mandamus Against the Cho-
teau C%anvassers Before the
Supreme Tribunal.
Attorneys for the Board Advance
Reasons Why Tt Should Be
Quaehed.
Argued by the Lawyers on Both Sides and
a Decision on the Point Expected
This Morning.

The case of the state of Montana OK rol.
Il. Il. Leeoh vs. the county canvassing
board of Chotesu county. was called in the
supreme court yesterday morning. John
w. Tattan appeared AS counsel for the can
wasting board, and he asked an extension OF
time until two p. M, stating that he had
arrived in the city Thursday evening, and
desired a little more time to prepare his
case. The request was granted. when the
court met at two O'Clock there was quite a
crowd in the court room, most OF those
present. however, being attorneys. Mr..
Tattan opened the case for the canvassing
board, saying the attorneys associated with
him were Robert b. Smith and Geo. +.
Shelton. He made a motion to quash the
writ OF mandate, basing his motion on the
following grounds:
First, that it was issued and attested in
vacation and out of term time.
Second, that IL does not appear to have
been issued by the supreme court of Mon
tana, but to have been issued by the clerk
of said court under the seal of said court
without any authority therefor.
Third, no record appears III the minutes
of this court of any proceedings having
been taken authorizing the issuance of the
writ.
Fourth, 1t appears from the records and
minutes of this court that the October term
thereof adjourned without day on the
third day of December, 1892. and that there
was no intervening term of said court or
any term until the 9th day of December,
when at noon of said day it convened for
the December term, 1892, and the pretended
writ appears to have been issued letwesn
these dates, to-wit: On the 9th day OF De-
cember. and without the order or authority
of this court.
Mr.. Tattan asked. that the writ be
granted on the grounds stated. and the
Hon. r. b. Smith opened the argument.
He said the writ showed it was issued Dec.
s, 1892, when the supreme court was not in
session; that the court had adjourned fol
the October term on Dec. 3, 1882. and that
the December term began Dec. 6. 1899. He
reasons. One was that under the constitu-
tion and the statutes nc justice of the su-
preme court could issue a writ of mandate,
but only the court setting as such; and that
the court itself could not issue such a wri,
in vacation. In support of his contention
supreme court he quoted article 8. sections
2 and 3, and also section II of the same ar.
ticle. which confers this power on judges
Of district courts. He also quoted a mum.
Der of authorities bearing on the case.
Judge Wade, on behalf of Leech, arguec
that under the constitution member of th'
supreme court had the power to issue writ
of mandate, and that the court should b.
considered always in session for the pur.
pose of issuing writs. Miss Ella Knowles
who also appeared for Leech, contendet
that the word ''writs'' in section 3 of articl
8 of the constitution referred to the list o
writs there specified and not to two par
ticular ones. She argued that if the posi-
ton taken by the attorneys on the othe
side was correct. that in some GASES liti
giants would be. left without adequat
remedy before the courts.
M. Shelton closed the case for the can
wasting board. He followed the same line
rs did MIR. Smith, but went more into de
tail. In reply to Miss Knowles contention
he said that it was not necessary to come I
the supreme court for this writ; that tn
constitution gave him the same light close
home-an application to the district JudR
of his county. Mr.. Shelton CONSUMED
about an hour in presenting his side of tn
case and the court adjourned till this morn
ing, when it will probably hand dow
a decision on the point raised. 1t
a very important question and. aside fro,
its bearing on the case before the court
one of great general interest.