The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-01-05
Judge Powers For the Defense.

Judge Powers then opened his batter
les by reading the pleadings as in the
petition. and reviewing the case as
made out. or rather not made out. by
the petitioners. The judge held that
they had altogether failed to prove any
OF the allegations made in the petitions.
He reviewed the evidence adduced in
careful and convincing manner, and
then proceeded to argue that even If
the petitioners had amy case they had
| adopted the wrong remedy. In eases Of
TINS KIND writS of mandates and writs
OF prohibition were not proper pro-
ceedlngs. as the petitioners had an ade-
quate remedy at lar under the form
OF quo Warranto proceedings.
counsel dwelt at considerable length
on what constituted the returns. and
reading from the Instructions in ina
STATUTE regulating the methods of con-
quoting elections, and particularly a
porllon which required The judges of
electlon 10 return to the Utah com
ssion the poll books, the poll lists
ana the tally sheets, all three of which
/ were described as the returns, and all
three of which were to zoe used by the
commission on arriving at the conclu-
SION as to which candidates had been
eiected. Counsel finished this portion of
ms argument by reading the opinion
OF Judge Bennett, given at the request
OF the members of the Utah commits
son, as to W at constituted the returns.
ana which exactly coincided with the
theory of counsel, that the tally sheets.
the poll books and the poll lists were
, the returns, and not the tally sheets
alone. 1t was understood that Judge
Miner had delivered a similar opinion
/ TO that of Judge Bennett, and b3,h of
these gentlemen now being Of counsel
Tor the petitioners, the reading of this
opinion placed them in a. rather anomoI-
| Gus position.
Counsel also argued that the power
OF the county court under the old law
to so to the ballot boxes had been. bv
the Edtnunds act, conferred on the
Utah commission. In several instances
the returns from Sanpete county were
SO irregular and incomplete that sven
the tally sheets were missing, and that
IN one Instances, the discrepancy was
probably as great as a thousand
votes.
The judge denounG5d the ele5t.on
laws obtaining in Utah as exceedingly
bad and giving such powers to the
Utah commission as no canvassing
board should be invested with. These
peculiar conditions, but they were still
the law, and the commission for years
had exercised its power under them,
and as long as the law was unchanged
it would have to stand and would
have to be ooeyed. The sooner the
election laws were changed thai better,
but until they were repealed they
would have to be lived up to. Counsel
argued that the law conferred judicial
functions upon the commission and
that they We're commanded to eXer.
else th'air best Judgment in canvassing
the returns, that THE court had no jur-
isdiction in this matter and that neither
a writ of mandate nor a writ of pro-
hibition against the commission would
lie.
Judge Powers spoke for about two
hours, and his address was about the
only thing that relieved the monotony
of the proceedings.
] Attorney John VI. Zane Closes.
Attorney John NJ Zane closed the
case for the petitioners. He argued
that sections 256 and PSI of the Ed
munds law are applicable to the can
wasting of votes for the territorial legiS-
lature and the question is what powers
does these sections confer on the can
wasting body I care not, said counsel,
! tally sheets alone or the tally sheets,
the poll books and the poll lists The
statute gives the commission power TO
examine the returns-it does not say 70
canvass them. If the discrepancy on
the tally sheets are such as would
affect the election of any candidate,
that is if the tally sheets do not agree
as TO the number of votes cast, then the
commission might count the votes in
,1,,-
| The statute does not mean any dis
! crepancy, but only a discrepancy as to
the total votes on the tally sheets and
4 without reference to the poll hooks or
the poll lists, for these could not show
j the number of votes cast. That is what
! fair construction of the law means.
The commission, under the law. have
no right to go into the ballot boxes, but
must certify from the returns. Counsel
he'd that the law conferred a minis
4 terial duty on the commission and for
that reason the commission had no
right to go behind the returns.
If one candidate is shown on one tally
sheet to have received more votes than
| are shown on another tally sheet, and
I if this discrepancy is not such as would
affect the result, the commission would
have no right to go behind the tally
sheets.
| GOunSSl NSll lldI lutIt was no QlS-
Icretionary powers resting with the COM
mission; their duties being, purely min
isterial they are bound to certify ac-
cording to the returns. On this point
counsel took direct issue with Mr.. VII
lianns and Judge Powers, counsel on the
other side. Adding up the returns from
the tally sheets, counsel held, was a
canvass of the votes and there is no
disagreement on the tally sheets affect
ing the election of Page, Larsen or
Jolly In fact, as regards these three
men, there is no disagreement at all.
The system of the commission in
! figuring up discrepancies counsel con-
sidered was at fault and really didn't
show for certain that there were any
discrepancies at all. There was no dis
agreement as to the number of votes
cast for any of the three petitioners
shown on the tally sheets and therefore
they have no excuse for going into the
ballot boxes to find any errors which
might change the election of Page or
any other candidate.
The poll books and the poll lists were
not required TO be certified to by the
iudges Of election. The law did not de
mand that anything but the tally sheets
be certified to; anything beyon
that was unaut horized. Counse
quoted authorities TO prove that manda
mus would lie against the Utah com
mission on the ground that their duties
in this particular were ministerial.
This concluded the mandamus cases
and his honor took the matter Nndel
Amusement.