The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1893-03-10

Mr.. Frank-"Mr. Kent received 594
and Lefavor 594. How are to know that
| Lefavor WAS not the opponent of Kent?'
Judge Walton--sIt makes no differ
ence IL he was, he was elected
Mr.. Frank-'Not if it required ma
iority Of all the ballots thrown to elect
| him.
Mr.. Drummond said he understood the
counsel on the other side to rest their
defense upon the case as presented by
| the petitioners, and as the petitioners
had made out their case, the next thing
to do was for the court to order the alter
native writ Of mandamus to issue.
1t may be said by way of explanation
| of the discussion that the alternative
writ. as it is called, commands the re-
| spondent, in this case the ward clerk, to
issue the certificates to the petitioners,
or else to appear before the court and
show cause why he should not do so. If
| he does not show good cause for refusing
tho certificate peremptory writ is issued
commanding him to do it.
Judge Walton said that the court had
the power to issue peremptory writ in
the first instance, where, as in this case,
a full hearing OF the merits of thelcase
had been had upon the petition, without
the DELAY Of an alternative writ, espe-
cially in cases whore the facts were I'M
disputed, the law plain and unmistaka-
BILE, and the case urgent.
Mr.. Drummond made the motion that
percmptory writ issue in both cases.
Judge Walton said: ut has occurred
to me that If there is a desire to really
test this matter further, 1t may be done
in this way. In my Judgment there is
49, .7n~,r rN~..rA
upon the face of the returns as to what
the legal result is; but l may be wrong.
do not claim to be infallible, and the
other members of the law court may
differ with me. The case can be tested
in this way: Let the men who are
primo foeae elected, who have the larger
number of votes, take their seats, and
let the men elected yesterday
bring writ of quo arorrdnto
and try their title to the office. You can
get decision at the June term Of the
law court II the city government goes
on under the mandate of this court, I'M
doubtedly the court will sustain their
proceedings; but if it goes an in defiance
Of the opinion Of the court, after having
had hearing, then the city government
ings declared Illegal 1t would be very
hazardous to go on with city govern
ment constituted in defiance of the opin-
ION Of the court, because it is the province
of the court to decide this case. The
executive and municipal departments of
the government ought to acquiesce in the
decisions Of the judicial department be.
cause by the constitution it is the judic-
ial department that decides these ques-
items. have given this case all the
thought possible since 1t was presented
to me, and it is my opinion that these
mon are clearly entitled to their certifi-
oates, and it will create q feeling of dis
trust and insecurity in our form
of municipal government that may
injure us in the future, ire
spective of party, If there should be
any hesitation in declaring that right.
am speaking wholly in the interests of
the City Of Portland and Its good gov
ernment. It seems to me that to pro-
coed with these men, to whom you y
certificates have been issued, acting as a
part of the city government would be
dangerous to the financial interests of
tho city, If nothing more. 1t is too plain
a case--too bald on the face of ito
furnish justification. Z. I should have no
hesitation myself, If was one of the
contestants, to refer it to you Mr..
Strout] or to your associates, if you
were not counsel In the case. 1t will in
jure tine good name of the City of Port
land for fair dealing and good govern
ment by allowing these men to whom
certificates have been issued as elected
yesterday to act as members of the COM
mon council. Besides, as have intimat-
ed before, it will be hazardous to the
financial interests of the CITY,"
Mr.. Clifford after comforting with his
associates said: After consultation with
my associates. we feel that while we re-
spcct your "a nor's apiHion, we have our
convictions on the matter, and we feel
that our duty to our clients demand that
we take the order of the Court as to the
issuing of the alternative or final writ.
But under our view of the law the stat
ute requires the alternative writ to first
issue. AS to the proposition of your
Honor, that the petitioners be given
their seats and the question be tried out
by quo warranto that would give them a
voice in the organization and give the
other side full control of the city govern
ment. Feeling convinced that that W ,uld
be unjust, and would place in the 1city
council men who were not legally elect
ed, we do not feel authorized to assent
to your Honor's proposition, although
we fully appreciate the motive of the
Court in ma ling the suggestion. Under
these circumstance and with due respect
to the Court we feel compelled to adopt
the course already intimated.
Judge Walton-fsAsI said, made the
suggestion in what considered the in
terosts of all parties and the city of Port
land. Counsel are entitled to have their
points reserved and decided by the
highest tribunal. They have conducted
their case with admirable good temper
and do not feel inclined to press the
matter beyond what might be considered
fairness to all parties; I will not order
the peremptory writ but the alternative
writ to issue and counsel may consult as
to the time it should be made return
able. "
After some consultation, Mr.. Drum