The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-27


George r Emery. for writg of mandate
20 compel the members of the Utah
commission TO issue them certificates
OF election as delegates to the consti-
tutfonal convention from the Third
precinct of Salt Lake. The cases we're
heard On Monday evening ana his
honor nov denie1 the petition.
The Opinion I'm the Mandate Cases
The opinion delivered by his honor
VASES follows:
~ Re two cases were heard last
evening on NSrits of mandate to com
pei the Utah Commission to issue Ger
tifcates to the REALTORS, and the only
question presented was as to whether
the Utah Commission, when a discrep-
ancy appears on the tally sheets, or
the returns, have d right to canvass
al OF the ballots relating TO that par
ticular Office. or whether they are con-
fined TO canvassing the ballots simply
so lar as the particular person is con-
cerned TO whom the discrepancy refers.
1 have made as careful an examine
ton OF this question as time would
perfpity and The point involved is
fdUEtd in a part Of section 25e Of the
Revised Statutes. 1858. So far as ma
serial IN this decision it reads as fol-
lows:
But if the right Of any person voted
for any Office is IN any way affected,
then the clerk and said members of
the county court shall open the bal
lots frcm said precinct and canvass
The same sc far as to determine the
rights of the person whose Office may
be affected
This section continued the COURT
gave the members of the county court
and the county clerk the right to go
behind the returns and canvass the
ballots when a. discrepancy occurred on
the face Of the returns which affected
the rights o. any person affected. The
question, then, occurs-Can they deter
minG, the rights Of the person whose
offics may be affected by simply can
wasting the ballots in relation to such
person where the discrepancy appears.
It tG53Bfe same office-a number of can
didat6s all on the ticket to be elected
TO the same office. Whichever num-
her receives a majority Of the votes ie
10 be declared elected. 1t would seem
quite difficult to determine Just what
the effect of an erroneous count would
be and what it Would lead to. 1t might
be possible that those receiving the
very highest number of votes had re-
ceived votes that belonged to the one
receiving the lowest number of votes
and 1 am disposed 10 hold that where d
discrepancy appears upon the face of
the returns Which entities the Utah
Commission to so into the ballot boxes
at eli. that they have the right, then,
10 canvass the votes relating to the Of
See, and for the candidates affected by
such once. I think the statute. how
ever, does not contemplate that when
The two offices are different For In
stance. in the case Of d Sherin and a
county clerk, if discrepancies should
appear as TO the Various can1i1ates-if
the sheriff, they would have no right
although the names OF the parties
might appear on the same ticket. tC
canvass the votes Of the other candi-
dates in determining the discrepancy
which might arise in the candidate fol
sheriff. But here the candidates are al
for the same off1ce-an struggling fol
their election as to that; and as the
supreme court of this territory has held
that discrepancy on the face Of the
tally sheets would entiue them TO &c
intODtee ballot boxes and canvass the
votes of such Office, think that theil
construction would also be in line with
what 1 have indicated. On The face Of
the rssturns in this case showing a dis
crenkfley. 1 think the parties have &
Tjgh1to make a canvass under the de-
cision of the supreme court. or course
the supreme court holds that the Utah
Commission, as l understand THEN
opinion, have the same power as The
county court had formerly. While
disagree with them on that point, yet
their decision is authoritative.
Attorney p. L. WiIRams-We under.
stand. then, that these WritS are de-
MED?
Judge Rarteh-Yes, the wrlts OF man.
date are denied.
\ The Prohibition CAGES.
Judge Powers then asked that thC
prohibition cases be now taken up
but Judge Miner wanted them con
tinued til O'Clock. some OF the peti
TONERS witnesses heinS absent.
Judge Bartch-As to the Wrfts O
prohibition, ] must say the opinion o
the supreme court is not as fun OF
that subject as I would have liked
They intimate that the Writg would
lie, but hold there is no necessity TO
them BY referring TO the decision il
the writ of mandate. I did not under
stand that that question was raiseC
before me at the time. had no under
standing that the defendants set W
the writ OF mandate as bar TO In
writ Of prohibition in the proceedings
EU( IL appGdIS II Was 81 pIGSeAleQ u
the supreme court and they have s.
held, but that the writ of prohibition
would lie.
Judge Miner said IL would take a da,
or two to try these prohibition cases
Judge Parteh answered that he mus
leave tor ParOWan on Friday morning
and unless the cases We're finished ,,
then they would have TO 90 over
JnSSe Powers insisted that the hear
ing 70 forthwith proceeded with. an,
aftez some further conversation tn
case vas taken Up
II was first mutually agreed that tn
testimony admitted In The Smith cas-
should apply in the Emery case also
and then Attorney Ogden Riles rea,
the petition for the writ. Counsel 10
the petitioners, he said, would offer t
prove that the ballot boxes had bee
stuffed. that votes which ought to
counted, and we're counted. upon tn
returns for John Henry Smith had bee
taken out and false ballots substituted
We ask counsel" added Mr.. T7ileS
t4to agree If IL be admissible at al
that the evidence taken in the man
date cases last night may be take
here"
Judge Powers4we have no objec
Judge Bartch- That includes tn
tally sheets2
Attorney Hile5-TeS. sir.
Attorney p. L. Williams, by way Q
amended answer. next asked leave [
plead the Issues and judgments Of thi
court in the mandamus cases as q ba
to these proceedings.
The court aggented to this
Leave was then given Attorney lille
70 amend the complaint ana afidavi
in prohibition by the setting up Of tn
fact Of the appointment by the Uta.
commission Of an Intermediary board
End their return