The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1896-12-13

Attorney r. 3. Shepard resumed the
arguments yesterday morning on the
order to show cause why a writ Of
mandamus should not issue against
the state board OF canyassers to pre-
vent them canvassing the votes cast
at the late election ana issuing certifi-
Gates to those elected. Mr.. Shepard,
in the course Of his remarks against
the issuance of the writ, said there
were six reasons urged by counsel for
the petitioner why the writ should
issue.
In regard to the allegation that the
bills regulating elections had not been
passed by yea and nay vote, Mr..
Shepard said that in every state in
the Union which had a constitution
like the state of Utah it had been held
illegal to go behind the enrolled L.ii
and the same ruling had obtained for
over a century in England. The court
might take judicial notice of the jour
nails, but the journals of neither house
of the legislature could be used TO im-
peach the enrolled bill, 3Gi counsel
held that the journals did not show
that the bill had not been properly
passed.
In regard to the title of the bill,
counsel failed to see in what way it
did not conform TO the requirements
of the constitution.
Mr.. Shepard then passed to the
claim Of the petitioner that his office
of district judge did not expire until
1901, and argued that an apDointee
OF the governor held only until the
next general election after the appoint
ment was made, and not until the
next election for judges. and in sup
port Of this theory cited California
and Florida decisions. He thought it
was very strange that Judge Richie
didn't discover before he accepted the
nomination that his term didn't expire
until 1901; very strange that he only
found it out after the people had
spoken and buried him and his col
leagues so deep that they VIII remain
politically out of sight for a long time.
Counsel held that the fact OF Ritchie
accepting the nomination. having his
name regularly placed on the ballots,
making the running. paying his cleo
ton expenses and filing his expense
account, estopped him from taking the
stand he now assumes.
In regard to the allegation that the
ballot was not secret, Mr.. Shepard
briefly discussing it, said if it wasn't
secret it was the fault of the county
clerk in not supplying paper of a
proper thickness. so that when the bal
lot was numbered and the corner
turned down the number could not be
read. or il was the fault of the Judges
of election IL not turning down the
corners properly or perhaps the fault
of both. It was not the fault of the
voters, and they should not he dis
franchised for the mistake of others if
there were mistakes. The mere num-
bering of the ballots, counsel held. did
not render the ballot not a secret one.
and. providing everybody conducting
the election did his duty, the ballot
was certainly secret.
JUDGE LOOFBOUROW.
Judge Loofbourow followed Mr.. Shep-
ard on behalf Of the petitioner. Coun-
sci IN arguing that il was proper to 90
behind the enrolment to the journal
instanced the case where the district
court having entered iudgment. the
judgment would be taken as Drima
facle evidence Of what the court had
done. but in case the Jurisdiction Of
the court was questioned it was proper /
10 so behind the judgment to the rec /
orcs. Again ii might be that docu- /
mont bearing the signatures of the (
presidents Of both branches of the leg /
stature and the governor purpOrting TO I
'I - f-4a leASSc-1 anu signed would md ]
us way 10 the secretary of state. and !
vet il might be that such a measure
had never been before the legislature.
In case Of that kind the journals
would have TO be Tesorted to- otherwise
Dill which might have been enrolled /
ana signed by mistake or fraud could
Dc used as complete cover for its
)wn fraud or mistake.
The fact thai the bill was signed bv
he president of the senate ana the
speaker OF the house was not Of itself
proof that the enrolled bill had actually
leen passed Judge LoOfbourow tha3, 4
'ead extracts from the journals 10
'rove that The amendments had been
adopted by a viva voce vote. and fbat
ne biils had not been passed by a yea
md nay vote. lie cited authorities
which, however. We're turned against
limsef by Mr.. Rawlins. who brought
NJ the fact b. . question that he
ause The journals did not state that
he bilis We're passed by yea ana
lay vote, ii was not proof that they
lad not been 50 passed.
Counsel then spoke on the secret
lallot proposition and argued. like Mr..
'ane had done, that the action Of the
udees, whatever that may have been.
lad nothing 20 do with making the
'ahot ncn-secret. The point was in
umbering the ballots so that each
ouiu ne traced afterwards. that was (
that made it not secret ballot.
Mr. Rawiins asked the speaker If il
vas not proper 10 make provision for
racing fraudulent ballots. Judge
.ocfbourow thought that it was pro
er TO provide against fraud but
idnt pretend to say how that ought
D be done. He was. however. CON
inced that the method of NUMBERING
he ballots was wrong and unconstitu
onal and some other method should
? devised which would conform to
~ requirements Of the constitution.
JUDGE HENDERSON.
After luncheon Judge Henderson oc-
1pied the attention of the court and
aid in part that while he admitted the
ase before the court dealt directly
18th only the rights of the petitioner it
ally involved the rights of every can {
date elected at the last election 1t I
as contended that two acts of the 6
gislature were invalid or at least I
lat certain clauses Of those acts were (
valid although the subject matter of {
Re acts and the acts in the main were {
/ right and covered proper subjects I
n legislation. [
When the constitutionality of an act y
challenged because of its subject
after then the judicial branch OF the f
'vernmeht may and il is proper that {
should examine the constitution and b
'ssibly go TO the records, but when il