The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1895-02-28

forever. upon an investigation that is
not confined to any issues, but is an
inquisition, an endeavor to search out,
dragnet, an examination OF any
thing and everything that can be said
about anybody, dragging in OF
names that are in no way interested.
That theory has been present here
from the inception of this contest.
That class of testimony they have pro-
duced here before your honor when in
fact legally the only testimony that
can be properly received and properly
considered by the court is testimony
as to the power of the commission.
Mr.. Hiies-That is not matter Of fact,
that is matter of law
Judge PoWerS-Ye5, matter Of law.
If we had followed the rules of law
we would have c.5poSed Of this case
in an hour. They have introduced tes-
tim0ny here that is not law or fact or
anything else, as unsubstantiaI as the
stuff that dreams are made Of And
now they are asking your honor to say
that fraud has been committed, and
that therefore they are entitled to
writ of prohibition. I am using my
brothers argument now, and I say.
granting that there have been frauds
committed. for the sake of argument.
assuming that every vote in that bal
lot box was Wrongfully. put there. yet
the court could not consider that in de-
termining this case, in which the is
sue is simply whether this board has
the power to go into these ballot boxes.
This case was determined when your
honor determined the writ of mandate.
The court then said it was a case in
which, in order to determine the re
suit. they had the power to go into the
ballot boxes. They would have your
honor now say that, although [ have
ruled that they have the power, never
thelesS you shall not go into these ball
lot boxes" From the face of these re-
turns they are unable to determine
who are elected; the consequence would
be that nobody could receive certif-
Gates from the Third precinct. To me
it seems only necessary to read our
statute. and it is only necessary for the
court to determine whether this board
has proceeded in excess of its jurisdic-
ton or is proceeding without its juriS
dictfon.
The Court want to call counsers
attention that 50 far az the evidence
in this case yet shows, can the court
determine as to whether they bad the
right to canvass all the votes in res-
pect to the Office of the constitutional
delegates? I hold that they have that
right.
Judge Powers-That is as I Under
stand it. your honor. And that is in
conformity with the ruling of the su-
preme court and the supreme court
in it's decision, as I read the other night,
in passing upon this says-and my
brother Hiles seeks to get around it
by saying that Judges Merritt and
King simply agreed with the judgment
of the court and consequently not ir.
the reasoning. The court there said:
There is much in The record IN this
case and in the kindred casa IL plo-
hibition, which was heard with it in
this court, 70 indicate corrupt and
criminal practices :ntended to affect
/ the election, occurring between the
election and the canvass by the de-
| PENDANTS. In tact in the prohibiion
case the court expressly found there
had been corrupt and criminal for6er-
I les, and it is not denied that SUCH did
! exist upon the tally sheets and returnS
and While in my view the evidence
could have no proper pace in either Of
/ these cases inaSmuch a9 the canvas
! sing board had no power to hear evil
dence in regard to it, etc
! The Court-Let me ash you, how dc
! you reconcile that with the position in
! the same decision which states that
they have the same powers as +he
county court where they had the right
under the statute, to call in witnesses
! and examine them?
duties imposed upon members of the
! bar, your honor, is to reconcile some
Of the opinions of the supreme court
I we have to take them and read them
in the lights that we have, and grope
along as best we may, for they tell us
what the law is. At the same time
apprehend that what is meant by The
/ Judge there in my reading of the
| opinion to be this: That they must
confine themselves to purely minis
terial duties. That the evidence they
may receive can only be with regard
to the regularity of the papers or the
ballot boxes that they have before
them. as to whether they have beer
! properly kept, as to whether they have
| been opened, as to whether the Judges
signed their names to the papers o.
not, but that they cannot go farther
and determine the contest. that they
must confine themselves to the
arithmetical methods in adding up the
returns and in counting the votes thai
! wrong in my construction of it. Tina
| is as near as I can answer the queg
I ton that your honor has submitted t(
me- 1t is in accordance with my view
of the issue that is rendered upon TIT
application for writ of prohibition
! That the sole and simple question TO
| the court to determine is whether tn
! board or the court or inferior tribuna
| is to act beyond or without its jurisdic
| ton. The court could not say, If /
found that an inferior tribunal haC
| Jurisdiction over the case and Their
was evidence that the court proposed
to decide the case. Even though i
/ might be made to- appear that in th
decision of it the court was proposin,
to hear testimony that no court upol
the face Of the earth would be entitled
to hear, for the sole power of thi
/ court in regard to the writ of prohibi
ton is to consider whether it is actinl
within its powers. The writ is not
writ Of error. 1t does not bring III
for review proceedings that should b.
had below It does not bring to tn
consideration Of the court the question
as 20 whether a thing is being wrong
| fully done or rightfully done. 1t bring
to the consideration of the court til
sole question as to whether they ar
acting within their power and Whel
4 the court determines that we say tn
I court is to stop and refuse the writ o
I prohibition. So far as all this tall
about fraud is concerned, as we hay
heretofore argued. it belongs to an
other forum and the court cannot sa-
that this commission will take thes
votes that are in that ballot box a
being conclusive or take the tall
sheets as being conclusive, that is no
considered here; the court cannot in
quire as to whether they would O