The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-24

The supreme court yesterday handed
down the opinion Of the Sanpete county
election cases, appealed from Judge
Bartch's Judgment in the Third dis
trict court, ]. D. Page ct al VS.. the
Utah Commission.
The opinion was delivered by Judge
Smith and concurred in by Chief JUS
tice Merritt and Judge King. Its effect
is that the ruling of Judge Bartch
granting the writs of mandate is sus-
tanned and that granting the writs of
prohibition is denied, the latter for the
reason that after the granting of the
writs Of mandate the prohibition pro-
ceedings were useless.
Their honors hold that there We're no
DISCREPANCIES, within the meaning of
the act, to justify going to the ballot
boxes; that the duties of the commits
sion easfe ministerial and not judicial,
and tNat where discrepancies arise, such
as VIII affect the election of any candi-
date. the Utah Commission has the
right to go into the ballot boxes with
out the appointment Of an intermedi-
atory board of canvassers.
Il was stated that owing to the short
time allowed their honors to decide the
question the coneurrinS judges did not
have an opportunity to fully go into
the reasons set down by Judge Smith
for the decision arrived at, and al
though they might on some points diff
fer from Judge Smith in his definitions
of the law, their conclusions in these
cases were identical.
The opinion in full is as follows:
The Opinion.
This was proceeding in mandamus be-
gun By the plaintif against the defend
ants to compel the issuance TO him, the
plaintin. OF certihcate OF election as
delegate to the constitutional convention
soon TO meet under the enabling act to
form constitution for the state of Utah.
The sffidavit on behalf of plaintiff on
which the alternate writ was issued Set
out substantially, that the plalntlH vas
an elector duly registered IN San Pete
county. Utah territory, al me tlnle Oh dns
general election held November 6, 1894,
tn said territory. That the defendants
constitute, the board commonly known w
same being created under section 8 Of an
act Of Congress approved March 2, -G32,
and commonly called '"The Edmunds
Law. That an election OF delegates TO
the Constitutional convention for the pro-
posed state of Utah was legally held on
November o. 1924. II set out in detail that
j
pointed and qualified and regularly re-
ceiFed and canV8ssed the votes cast in
San, Pete county for election of the dele
EatesE-o said convention. II was alleged
that Jfaintim was q candidate for dele
gate TO said constitutional convention and
received a majority Of the votes cast in
said Sanpete county Cor such office: that
the Judges of election made due and legal
returns OF their canvass Of the votes cast
for the plaintiff 20 the defendants. who
constitute the board Of CaDyaSSerS as
above stated That there was no irregu-
larity or discrepancy or disagreement APP
peaTing from the face Of said returns.
plaintiff was elected 1t is then alleged
that the defendants have completed their
canvass of the VoteS, and have refused
TO Issue to plaintiff any certificate Of
election. although the plaintiff has de-
manded the same. and that the plaintiff
has no plan speedy or adequate ready. in
the ordinary course of law. The alter
nate writ of mandate was issued and
contained the substance Of the af1oaVit.
The defendants answered and denied:
Airst- that the plaintiff received a ma
3prity Of the votes cast in SanDete c0un-
" for delegate TO the constitutional con-
Sention. Denied that no irreSularity, dis
crepancy or disagreement appeared on
the face of the return. and alleged that
there were irregularities, discrepancies
End disagreements that affected plain
tif's election, and allowed there was. a
disagreement as TO the votes cast fol
Diaintim shown by the face OF the returns
Third. Denied that their refusal &c
tiff was wrongful or unlawful.
Fourth. Denied that plaintiff was with
ont remedy. And NTH; alleged that dis
orepancies and Irregularities appearing
on the face Of the returns they have
opened and canVassed the ballots, and
that il then ascertained that PLAINTIFF Is
rot entitled to a certificate Of election
Without setting out the findings OF f2ci
in this opinion IN detail. It is sufficient &c
ray that the court found the issues in Ia.
vor of the plaintiff on al contested ques-
Sions and especially found that there was
no iTTegularity or discrepancy apparent
upo'l&flo face of the returns and granted
a peAnptory writ o. mandate, requiring
defendants to issue to the plaintiff the
certificate of election as prayed Tor.
4 motion for a new trial vas oyerruled
and the defendants appeal from the 5u6g
xnent and order denying new trial. Sev
eral errors are assigned but they may bt
grouped under three heads;
F'irst-That the evidence was INSULT
rfent to iustifY the Judgment and deci
sion of the court
Second-The court erred in receiving
any testimony on Dehaf OF the DlalntlH
and third The court erred in awarding
1oeremprory writ. We shall examine thesi
assignments Of error in the order stated
what Constitutes Discrepancies.
The particular finding which is assaileC
as not supported by the evidence IS th'
eighth. which is the hndinS IN effect tina
there were no irregularities upOn the fac
ri the returns authorizing a re-canvas'
B of the ballots cast we nave carefulll
Y Abatement, including the original returns
4 xrrhiofI are made part Of it. and are I'm
able TO find any Irregularities or. discrep
n zncies which in any way effect the result
VI of tho election Of the pldintin. The IL
Il ,.ss.1,Iaritiee and DISCREPANCIES which de
N fendant5 claim the returns disclose ar
s 51,, res registry list containing the wore
IA ,.r-1trd'- opposite the names of certain
s,ofefe is compared with the Doll list O.
tast of the names of voters made at tn
t|.5oofjo1l. and they are found not 10 CORE
II loud IN certain particulars, as follows
81 IN the precincts Of Chester, Ephraim
id sInnison and Moroni. there is found L
szks- marked '-voted" than appear OF
M iist or list of votes MADE at tn
- f-tior IN these precincts: While IL Thu