The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-03


perform the acts that the appellant
cIalm Tor them, then prohibition VIII
not interfere to prevent their exercise
CT those powers, amy more than viii the
writ of mandamus.
The Respondents Position.
The respondents set up that the de
PENDANTS, at the trial in the lower court,
showed that along with the duplicate
faay sheets there mad been transmitted
70 the commission the registry list of
each precinct and the poll list made by
one of the judges of election. These
documents were objected to 10y the pc
titionerS on the grounds:
tirst-Tlaat they constituted no part
of the returns
Second-That they had no tendency to
Snow amy discrepancies as to the num-
Der of votes cast for any candidate.
Ihdrd-That they were not the returns
as originally made up and it was not
shown that they had not been altered.
An inspection of them shows alterations
made ON the registry lists by writing
the word voted i'm a totally different
handwriting from that of the judge of
election, and made on the poll lists by
snahing a cross in the second column in
q totally different inll
The alterations were fraudu.ent, be-
cause they exactly explained the dis
crepancieS between the registry lists
and the poll lists.
The defendants IN The court below
introduced their table Of discrepancies,
made up from those sO-caled returns
Therefore, the question comes 10 a con-
.Sider3tion of the law to ascertain what
are the duties of the Utah commission
Under the circumstances. The Jaw is
drawn from two sources the territorial
election law and the Edmunds law,
From these THE deduction was drawn
by the petitioners THAT the duplicate
Tally sheets constitute The re-
turns and the net result Of the
law is held to be that a canvassing
board can only canvass returns upon
express legislative authority; it cannot
recount ballots and thus perform the
duty imposed upon the judges of cleo
ton; therefore, if the discrepancies are
as 10 territorial officers by section 257
there is no express grant Of power to
recount the ballots; but even if section
200 does not apply to territorial officers
the discrepancies must be in those
documents, which constitute the re-
turns, to-wit: the duplicate tally
sheets. But even if the poll books and
poll lists are a. result Of the returns.
discrepancies in them do not affect the
result of any candidates election, be-
cause they do not show the number Of
votes cast for any candidate. The dis
crepancies found are between the poll
books and poll lists and do not affect
the result as to the number of votes
for any candidate. Then, too, these
discrepancies are palpable alterations
made evidently With a fraudulent in
tent.
Under the Edmunds law the respond
ents held that the duty of the COM
mission is ministerial, and mandamus
hes to them to compel them to issue
certificates of election from the judges
returns, which gives the delegate his
prima fdcie right TO a seat in the con-
yention, and as to that he has no ade-
qu3te remedy in the ordinary course of
law; quo Warranto OF election contest
does not lie, because the convention
judges Of the qualifications of it's men,
bers, and no court has jurisdiction Of a
contest to determine the right TO the
office. Even if it did lie, it tries the
title to the Office, not the right to the
certificates, which is the right in ques-
ton. a contest before the convention
is not q, remedy, because that deter
mines the right of office and not the
right to the certificates.
The opening arguments for the APP
pellants was made by Attorney P. L.
Williams, who was followed by judge
Zane for the respondents. Attorney
ogden Hiles then closed the arguments
for the respondents and Judge Hender-
son closed for the appellants
Hon. P. l.. Williams, in his opening
argument, said that these proceedings
were in mandamus and prohib5tion-
the same plaintiff against the same de-
PENDANTS, and involved the same mat
ter The subject OF mandamus was
governed by the statute in this terri
tory, and it had been held in the state
from which the Statute had been taken
that it was but affirmation Of the COM
mon law right OF mandamus. 1t was
reasonable in any case where there was
not a, plain speedy remedy-where a
court, a board, or an officer was re-
quired to perform a duty which tine
law enjoined, and the construction of
that made it that the court Will only
compel by mandamus the performance
of "a duty which is ninisterial; but if
It was judicial or quasi-judicial, if it
involved the exercise of Judgment and
discretion under the St3tute-if that
sort Of power was imposed upon a
court, a, g1oard or an officer, then the
court would never direct by mandanus
how that discretion, or Judgment,
Should be exercised, and in such a case
the writ could only be obtained upon a
showing that the party or board char>g-
ed with such judicial power, ar an eXer-
else of Judgment, refuses to act, and
in that CASE, upon a proper showing,
the court would proceed ITO discharge
its function.
Prohibition is set up by our statute
10 be the counterpart Of the writ of
mandate. 1t arrests the proceedings of
any tribunal, corporation, board, or
person, whether exercising functions
judicial or ministerial when such Dro-
ceedings are without or in excess of
the jurisdiction Of such tribunal, etc.
So it would be seen, IL the speakers
contention was right, that the Utah
commission had the power to perform
the functions which he maintained
they had. then the writ of prohibition
would not stay. It was only a case
where an excess Of power had been
used that such a writ could apply. I'm
this discussion there was but the de-
termination Of two qUeStions-ghe
question Of the propTiety of the writ of
mandamUs in this case, and, equally.
the question as 10 the writ of prohi-
bition. There were but two questions
in the case-firSt, under all the law.
have the Utah commission, as re-
turning board, the power to canvass
the returns and in any caae open the
ballot boxes and canvass the ballots?
Second, if they have that power in any
case, does the record in this case show
q case in which it presents an inquiry
as to whether this was a proper case
or not
Counsel claimed that If the facts
showed that there was a case present
ed TO the commission as a canVaSsing
board whereby 1t was necessary to go
into the boxes, then the very accept
ance of. that fact-the fact that an in
curry was raGsed-eXcluded the power
of the court The court in This case
was not a court of appellate powers;