The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-01-23
owHrrE IS BLACK ARGUMENTS.

"WHITE IS BLACK" ARGUMENTS.
It is remarkable how some lawyers
will reverse their positions on the
same legal question. Perhaps that
ought not to cause astonishment when
judges sometimes do the same thing
The bar is not likely to soar higher
than the bench.
In the recent election cases we be-
held the spectacle of attorneys who
had given their legal opinion, backed
by quotations from the statutes. thai
election returns consisted Of the regis
try lists, poll books and tally sheets,
going into court and arguing that those
returns consisted of the tally sheets
alone!
Now we behold attorneys, who ar
gued in court that the Utah Commits
sion had no power to go into the ball
lot boxes for any purpose or under any
circumstances, but that the power to
do so was to be exercised by a board
appointed by the Utah Commission,
contending before that board that no
such authority is vested in it and de-
handing that it shall forbear its ex-
ercise!
The Utah Commission, acting on the
decision of Judge Bartch, appointed a
board of canvassers for this county,
to take the place of the county clerk
and county court as provided in the
Utah statute. There can be nothing
clearer in law than tinat the board so
constituted has not only THE power but
! is required by law to go to the ballot
boxes in case of such discrepancies as
are now found to exist in the Third
precinct of this city.
Judge Bartch decided that the board
| of canvassers composed of tie clerk
of the county court and members there
Of. had the right to go behind the re-
turns and count the ballots 'if there
shall be any disagreement in the re-
turns of the election of members of
the Legislature, or, as In this case, for
delegates to the constitutional con-
vention. Also that the Utah Comis,
sion should, under the Edmunds Act,
appoint a board of canvassers to take
the place of the board provided for in
the Utah statute, having Of course, all
the powers of that board.
Now come the attorneys for the OBJ
jectors to the canvass, and claim that
Judge Bartch not only ruled that the
Utah Commission could not personally
so to the ballot boxes but that none
of their appointees could do so. Here
is what they say on behalf of John
Henry Smith and George R. Emery:
THE Third District Court has issued
writs Of mandate and prohibition
against the Utah Commission, prollib-
iting that board and its appointees go
ing into said boxes or counting the
! ballots therein"
The bald falsehoods in that state
ment will be apparent to any one who
reads the decision of the court. It's
closing words are: THE writ of pro-
Inhibition is denied" Since rendering
that decision, Judge Bartch has been
induced to modify it so that while the
writ is not issued, it is allowed to be
pending. In any case then, whether
denied or pending, it has not been is
sued as stated by counsel for Smith
and Emery. Nor does the writ of man
date to the Utah Commission extend
! to their appointees" as impudently
/ asserted. On the contrary, as we have
shown, Judge Bartch decided that such
appointees have the power to go into
said boxes and count the ballots"
! Lawyers often do pretty much as
they please wnen they conduct a case.
but when they file a paper on behalf
of their clients the latter must be in
Guided in the responsibility for the fiat
falsehood it may contain.
Whether the right is given to the
+ Utah Commission under the laws of
Congress and of this territory to re-
count the ballots in such cases as
those that have caused so much COM
ment, or it should be exercised by a
board of their appointment, is matter
which has yet to be finally adjudicated.
But that the power is vested by the
statutes in a, board of canvasers is be
yond truthful dispute, and that it is
a necessary power needs but q. mo-
ment's calm reflection to decide. The
votes cast are the only means to finally
decide an election. The returns are
but testimony as to the result.
When an attorney at different times
takes exactly opposite sides on a oues-
ton Of law which is so plain that there
is no room for fair dispute, it tends to
degrade an honorable profession and
cause distrust in the honesty OF those
members of the bar who thus play the
legal harlequin. A great many hard
and often unjusti1able things are said
Of lawyers, but nothing reflects more
harshly upon them than such white is
black" assertions as those in the pro
test to which we have here referred.
Now is the time to work Secretary
49,