The record-union., 1893-12-20

writ OF mandate would not be proper
or desirable procedure.
At the opening of the afternoon session
Mr.. Devlin asked Mr. Brown if, on the
the meeting of the Trustees to have
case instituted to test the new charter,
with himself as the contestant.
Mr.. Brown said there was, and he con-
sented if it could be shown to be in the
interest of the people, and the question
could be determined before the lst of jan
uary. At a subsequent consultation OF
the officers-elect he Brown said he
would not consent to such a suit If ne was
to be put to dollars expense.
He was appointed one of committee
to request an opinion of A. c. Freeman,
and he did write him on the subject. He
changed his mind on the advisability of
test case on the same day the board
met, and for the reason that he did not
propose TO be put TO any expense in the
matter. He had arrived at the conclusion
that the whole thing was ill-advised, and
so informed the board at its next meet
ing. He relied upon his own knowledge
and Interpretation Of the law, and had
come to the conclusion that a mandamuS
action would not be the proper course.
Mr.. Devlin asked several questions,
which were objected to- his object being
to show that the intent of the Trustees
under an agreement with the officers
elect.
The objection was sustained to certain
questions, but the witness was permitted
TO relate what occurred at meetings of the
Trustees. The board had expressed a
desire to have one mandamus action COM
menced.
C. E. Leonard, Trustee-elect from the
Seventh Ward, was next examined con-
cerning what transpired between the
officers-elect and the City Trustees. He
said he was present by invitation Of the
City Clerk on the 18th of November, at
which the matter of canvassing the re-
turns was discussed. Mr.. Devlin sug-
gested that one certificate be withheld
and a mandamus suit brought to test the
matter.
Subsequently the officers-elect held
consultation in an adjoining room, and it
was agreed to have such suit brought in
case they could not do any better. He did
not understand that the oficers-elect
agreed with the Trustees to go on with
suit as proposed.
When the demand for certificates was
made the Mayor said the Trustees pre-
ferred to have the board mandamused.
At the session of the board on the 4th OF
December the Mayor stated that he had
not refused to have the certificates issued.
When Trustee-elect H. w. Bragg was
called General Hart said there was no
use putting in so much testimony Of the
kind that had been offered, as the records
of the City Trustees was the best evidence
in the matter.
Mr.. White said that if the other side
would admit that the Trustees had know
ingly and Willfully refused to canvass the
returns and issue certificates OF election,
he would close the case then and there.
General Hart replied that the Trustees
must certainly have acted knowingly in
what they did.
Mr.. Bragg's testimony regarding what
transpired at the meeting OF the board on
November 18th and the 18th of December
was substantially the same as that of Mr..
Leonard. He was not croSs-eXa mined.
Trustee-elect l.. Tozer was also ex-
amined on the same point. He said that
when it came to canvasslng the returns
Mayor Steinman stated that certain city
officials had expressed determination to
contest the validity of the new charter,
and suggested that a test case be agreed
upon. He could not say that the officers
elect had agree to have their certificates
withheld for that purpose. subsequently
they met and authorized City Attorney
elect Brown to inform the Trustees that
any understanding they may have had as
to an agreed case must be considered of.
To Mr.. Devlin witness said he was from
the beginning opposed to any mandamus
action to obtain the certificates. His idea
was that If anyone wanted the new char
ter tested such person, and not the candi-
dates elected, should proceed in the mat
ter.
w. d. Lawton, another Trustee-elect,
testified to substantially the same facts as
had already been brought out regarding
what had transpired between the officers
elect and the City Trustees. He for one
had refused to consent to any test case.
At this point Mr.. Devlin moved for
dismissal of the case on the ground
that it had not been shown that there was
any willful neglect or refusal or the part
of Mayor Steinman or Trustee Green to
do their duty in the matter at issue. The
defense preferred at this time not to go
into the case to the extent of showing the
invalidity of the new charter, as the ale
cation against the defendants could be
disposed of readily on the testimony
offered.
General Hart, also speaking for the de-
fense, said the Mayor had been desirous
of having the charter tested before mat
ters had gone so far as to involve the city
in serious and expensive litigation.
There has been no willful desire shown
by him to avoid his duty. Suppose the
charter goes at once into effect, and taxes
levied and ordinances passed. 1t would
take a year to determine the validity of
the charter, if contested, and serious re-
suits might follow. These facts show
that Mayor Steinman's action had been
based on good and deserving grounds,
hence the defense had moved for a nom
suit. If there had been any testimony
offered to warrant the presumption that
the defendants had done an illegal act,
they would be willing to go on and test
the entire question, involving the valid
ity of the charter, but he was convinced
that such a course was not warranted at
this time.
Judge Catlin-What assurance has the
court that the defendants will declare the
result of the election officially, if the mo-
ton for a nOnsuit be granted?
General Hart-That IS a matter for
after-consideraJion. # an officer WEI g
satisfied that law creating an office was
illegal. it would be his duty to refuse to
comply with 1t.
Proceeding, General Hart said it was
not cOntended by any one that the de-
PENDANTS intended to deprive the officers
elect of their legal rights. 1t was under
stood and agreed that the matter should
be amicably settled in time TO have the
charter take effect, if found to be valid,
and the failure TO do so was not the fault
of the Trustees.
Mr.. White said he had endeavored to
snow LuaL the acts OF the QeleDQaDJS naQ
been willfully and knowingly COM
mitted-the refusal to do their duty in the
matter of issuing certificates to the otli-
GERS elected. The defendants answer
was alone sufficient to prove this.
Counsel then cited decision in SINH
lar case in which the defendants had been
found to have willfully neglected to per-
form their duty. He held it was no de-
fense that the person or persons charged
expected ultimate good results to follow
their action. lie argued at some length
to show that the word "willful' meant
not by accident-that the defendants
action was designedly taken, and that
they persistently refused or neglected to