The herald., 1896-01-21
Argument on the Primary EIec-
ton Law Injunction Suit
SOME POINTS WERE RAISED
Ex-District Attorney Dillon Comes Into
the Case for tine PopuIists
He Believes the Law Is Constitutional and
Will File a Brief-The Bailey Rape Case
in the Hands of the Jury

Inc appllcatlOn LOT an 1nJunCtlOn 1nStl-
tuted against the board of supervisors by
Martin Marsh, to restrain them from APP
propriating funds to carry out the provis-
ions of the new primary election
law, came up for hearing before
Judge Van Dyke yesterday afternoon.
M. w. Conkling represented Mr. Marsh,
while Assistant District Attorney Dillon oc-
cupied a seat at the table and represented
ia certain body of citizens" presumably
the Popu!ists. There were only about half
a dozen persons in the room outside of
those directly interested.
Mr.. Holton interposed a demurrer to the
complaint and rested the case for the peo-
pie on the statute.
Mr.. Conklng argued that inasmuch as
the law applied only to counties of the
first and second class, it was special law
and contrary to section 25, article IV of
state constitution, which provides that the
legislature shall not pass any special law
regulating the election of county officers
or providing for conducting elections Or
creating offices in election districts.
He then quoted the case of Schumacher
VS.. Toberman (56 Cal, 50S) and other
authorities, holding that the proper remedy
was that chosen, namely to enjoin the SUI
pervisors, and pointed out that unless the
supervisors we're enjoined from proceeding
the county would have to pay for the bal
lot boxes, etc.. although purchased for an
illegal purpose, for the reason that the
board had had general power to purchase
such things and the person furnishing the
same that that they were purchased for an
Illegal purpose.
Mr.. Conkling also cited numerous auth
critics from other states sustaining his
position Ethat the statute was unconsti-
IutiOnal and void.
Mr.. Holton said that he had nothing fur
ther to add than what was embodied in his
demurrer. backed up by the statute.
At this point Mr.. Dillon addressed the
court, and, as the representative of GER
tain body of citizens, he desired TO intro
duce brief. He said thai there did not
seem to be any differences between the
plaintiff and the defendant, as both seemed
to be agreed that the law was unconstitu-
tional, and he wished to present q brief
from his standpoint.
Mr.. Holton resented the insinuation that
there was collusion Of any kind between
plaintiff apd defendant. All he wanted
was decision on the law. The super
visors decided to vote the appropriation on
the 22d, and in consequence haste was
necessary.
Judge Van Dyke asked Mr.. Dillon how
much time he wished in which to present
his brief, to which that gentleman suavely
replied that he would be willing to submit
TO he usual rule, "five, five and three"
This brought out vigorous protest from
both Messrs. Conkling and Holton, when
Judge Van Dyke cut the discussion short
by ordering all parties to hand in their au-
thorities this morning at 10 o'clock, to
which time the hearing was continued.
In the Hands of the Jury
The Bailey rape case was given to the
jury shortly before 6 o'clock last evening.
Most of the day was given up to expert tes-
timony by physicians, after which argu-
ment followed. As has been the case
since the beginning of tie trial, the wife of
the defendant occupied seat by his side,
and apparently has the utmost confidence
in her husband. The defendant told his
story during the morning, giving his state
ment in straightforward manner. He
denied the story as told by tho child, Mar
garet Taylor, saying that he merely went
to the house to get needle to pick some
slivers out of his hand that he had picked
up in sandpaperng floor which he was
painting. He attempted no liberties with
the child, nor did such a thing enter his
mind, and he could not understand why
she should have told the story she did.
Assistant District Attorney Williams
opened the argument and was followed by
Mr.. Davis, OF Davis & Rush, for the de-
fense.
sensational episode occurred during
Mr.. Davis speech. The father of the child
was sitting in the audience inside the rail,
and when MIR. Davis, in commenting on
the testimony, stated that the girl had
never denied that she had been intimate
with other boys or men, it was noticed that
Taylor was laboring under great excite
ment. AS the attorney emphasized the
point, which was one of great importance
to the defense, the father could not stand
the strain, and jumping to his feet ex-
claimed: .You are a liar: you lie sir; she
did deny it," Judge Smith at once ordered
a stay in the proceedings, and calling Tay-
Ior to the bar told him to consider himself
under arrest for contempt. The excited
man quickly subsidized, and the argument
proceeded without further incident to the
close.
The judge then instructed the jury, and
they retired to their room for deiiberation.
After half an hours deliberation they went
out to supper. On their return they were
again locked up.
At 10 o'clock they were locked up for the
night. it being stated that there was no
possibility of an agreement at that time,
and the defendant was taken back to Jail.