The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-11-02

Henry James yesterday entered Pc
tition against A. N. Cherry, who was
appointed to hear objections to voters
and strike any name from the registra-
ton list found illegally thereon, and
the hearing came up before Judge
Merritt.
James says in the petition that he is
a naturalized citizen of the United
States, a duly qualified voter of the
Third precinct, residing at 172 North
Eighth West street; that his right to
vote was challenged by George Pugs-
ley, and that he received no legal no.
tice to appear before Judge Cherry
and show cause why his name should
not be stricken from the registration
lists; and further that Judge Cherry,
unless restrained by the court, will
have his name stricken from the said
lists. Wherefore he prays for writ
of prohibition preventing Judge Cherry
from so doing.
Attorneys H. E. Booth and c. o.
Whittemore appeared for the petit
toner and Judge Dey for the Defend
ant.
Demurrer and Answer.
The defendant, by his attorney,
Judge Dey. entered demurrer on the
grounds that the petitioner does not
I state a cause of action because the
defendant had not certified that
/ James was unqualified to vote and
( was not obliged to make any return
until Saturday night, and therefore
these proceedings were premature;
{ also that James had notice of the
4 hp9 RING a16 hod
/ appear before the defendant and estab-
lish his right to vote; and that pro-
/ ceed1ngS in prohibition was not a
proper remedy. and that certiorari
/ proceedings was the proper cause.
The defendant also filed an answer,
| alleging that proof was offered and
made that after due and diIigent
( search and inquiry had been made. the
I said James could not be found within
the Third precinct; and that at the
street number at which James was
registered there was a vacant lot The
defendant admits that he proceeded
on the 18th day of October, 1895. to
hear the objections that had been
made to the right of said James to
vote, but in that behalf alleges that il
was only partial hearing and mat
said and every other hearing was
held open as required by law until
shutdown on October 81, 1895.
Further answering, the defendant
denies that it was or is his purpose TO.
or that he will. unless prohibited by
the court, transmit the name of
SAID James as an unqualified
person to the judges of election. than
said James was on Oct. 81, fully adj
v1sed Of the objections made to his
voting and he knew that he was enti-
tied to be heard; that long prior to
shutdown on Oct. 81 one Price, purport-
ing to act in the interest of James, cal
led at the office of the defendant and
stated that James was a properly quail
flied voter and was entitled to vote
and defendant then informed Price that
he was willing to receive evidence of
the fact that James was a resident of
the Third precinct and requested that
Price be sworn to said fact but Price
refused to be sworn.
The defendant further sets I'D that
the action of James in instituting this
proceeding is capricious and not in
good faith and that he, the defendant
has not reported the name of James as
not properly upon the registry lists
or as a person not entitled to vote and
that James has been given ample time
and notice to enable him to make a
proper showing as to the facts. 1t was
admitted that the notice was returned
showing that personal service had not
DS6n maze upon James DuL IQdC Was
because he could not be found in said
: Third precinct.
; Demurrer Sustained.
t Judge Dey said that on presentation o
an affidavit by James stating that h,
was qualified voter and resident of tn,
precinct, his name would be passed a.
a legal voter. Judge Dey in his argu
0 ment also said that a writ of prohibi
ton was not proper remedy, that j
could be reached only by a writ oEcer
L tiorari.
: Attorney H. E. Booth wanted a rul
ing anyway, but Judge Merritt salt
he wasn't going to pass on question.
D brought up in an illegal way.
Messrs. Booth and Whittemore's ar
3 sumentS contend on the point that tn
= service of the notice should be 2, per
sonal one and that such notice not be
/ ing served personally on James it wa
Illegal. His honor, however. in viev
of the fact that Judge Cherry agree
l to pass JAMS as qualified on proof o
. the fact being made, said he would no
l pass on most questions and sustaine
M the demurrer on the ground that pre-
Inhibition was not the proper remedy.
Messrs. Booth and Whittemore sa
% they will institute certiorari proceed
ingS today.
> MeIdrum Says Not Guilty.