The record-union., 1892-06-18

He said that the minister was friend of his
-that ne had known him since he went 10
sunday school, but he could not remember
MS name. He said they were married in
mouse, not in the church, but ne could not re-
member what street the house was on. He
was then asked:
1T was in San Francisco, as 1 understand
you, that You were married?n
A-Old not say in Alameda?
Q-Nos you said you were married in San
francisco, as understood you.
The Judge-You said Mrs. Baxter was living
in Alameda, but you said you were married
in San Francisco?
Ayes.
By the attorney-Then you were married in
San Francisco?
Q-Do you remember what street you were
married on?
Al do not remember the first thing about
Q-You remember the month of the year
you were married in?
A-Some time in the fall of the year.
I-No. 10 not remember 'ne month";
Being asked on redirect examination how
long he knew Mrs. Baxter before marrying
her, he said: "Well, had known her about
year or So" But again, on re-cross-exannina-
tlon, SAID 1t was two or three years. / have
given the cross-examination OF the witness
thus largely In his own words to better illus
tfate than could any comment or suggestion
OF mine, the character of his evidence. 1t
SHOWS Its deficiencies upon its face, even with
unable to ascribe the halting and contradict
DRY statements of the witness to confusion or
lnadVertence, or To the genuine lack of men,
ory. he Is a man yet in the YigOr of life of
ready ana intelligent mind-with no evidence
OF impaired faculties; and man does not so
readily or entirely forget the prominent de-
talls Oh Wnat, 10 most men, is the most I'M
portant and abiding event of their lives Ac-
cord1ng TO the witness statement he knew
MIS- Baxter three or four years before mar
rage, and she had been separated from her
nuSDanQ two three and if
pears from his own testimony on another
Dranch OF the case that she had a daughter by
Baxter, born IN 1854. He first procured his
marriage Incense IN San Francisco, then in
Alameda, and then, when finally cOrnered,
ADMITS that he had none at all Mrs. Baxter
was lrst nylng in Oakland at the
time, then in San Francisco, and then
partly in both places. He first states
they We're married in san Francisco, then in
Alameda, but finally in San Francisco. He
Is married by minister conveniently, but
tranSlently here, whom ne had known from
his boyhood-at Sunday-school-anu yet is
absolutely unable 10 give his name He is
married at a private house in san Francisco
put does not say whose, and does not know
where, and cannot remember the street. He
was married in 500, but does net remember
the month, and finally concludes that he does
not remember anything aboutit. He makes no
effort, so far as the evidence diSclOSeS to DTO-
duce the certificate of his marriage or copy
although the law at the time made it the duty
OF the minister, under heavy penalty to file
one with the Recorder OF The county His man
ner throughout was that Of one drawing upon
MS imagination for q necessary fact which did
not exist in the truth. Truth is not hard to
tell; 1t falls from the lips without effort and
with force and directneSS that carries its
own conviction. But here there is a painful
lack OF anything in these statements in the
manner of the witness or in the surrounding
circumstances, tending 10 sustain their truth,
ana L IND myself entirely unable to accord
them the credence which would permit me to
ma from them the important fact of mar
riage.
no y5,o,, a.
unsatisfactory character OF this evidence, and
the probable inability of the court to find
rom 1t the TACT of marriage, since he contends
finally that even in the absence of evidence
to sustain the marriage the court is bound to
presume it from long cohabitation of the
parties. This would be true under other cir
cumstances, but the principle does not apply
here Ii respondent had established the fact
of divorce between Thomas H. and Mary
Baxter, possibly the law would then Indulge
the presumption of marriage. But respond
ent rested the question of divorce upon the
presumption which he contended would fol-
low proof of marriage, and having failed TO
eStabhsh the latter tact, the presumption of
divorce falls with it, TO sustain respondents
contention, therefore, as the case is left by the
evidence, the court would be called upon to
presume (ftrst that the Baxters were di-
vOrced; (secondly) that the respondent was
legally committed by the divorce decree to
the custody of the mother, and (thirdly1 that
Mrs. Baxter was subsequently legally mar
r1ed to William a. Rodgers. This would be
building the respondents right of citizenship
upon tower of presumption which | fear
would not withstand the shock of legal prin-
ciple. Certainly it would be carrying the
principle beyond anything found in the au-
thOrities l have carefully e. tmined the au-
thortties cited by respondent, but they fall
short of sustaining any such proposition as
that commended for.
This uispoSeS of respondents second propo-
sitlon, and it results that the respondent was
not naturalized by the marriage of his mother
From the conclusions reached it follows
that the respondent did not become a citizen
until he was naturaliZed on February 90
1892, and as q consequence that he was not
eligible to the Office TO which he was elected
because, as we have seen, he was not quali-
fed elector under the Constitution.
| have reached these conclusions with con-
siderable reluctance and after much labor
necessitating as they do the overturning OF the
expressed VIII OF the people. The proceeding
is one, however, authorized by the law and
with the policy or eXpediency of invoking il
in this instance have nothing to do.
1t was contended by contestant that the
court should IN this proceeding determine
who is entitled TO the Office of Chief of Police
in the event respondents election should be
annuled. But that question does not arise
Ii ii was contest involving the question as
legal votes, then the court could declare who
was elected. (Sec. 1923, c. G. P.) But in this
form of contest only the right of the respond
ent is challenged or involved, and the power
OF the court in such case is limited by the
statute to pronouncing Judgment in the
premises, 'either confirming or annulling and
setting asideSuch election"
In accordance with the foregoing views
Judgment will be entered upon proper find
ings annulling and setting aside The election
OF res poDdentt and it is 50 ordered
w. T.. VAN FLEET. Judge