Omaha daily bee., 1899-11-01

on tne TICKET, III was Conlenueu luht "
is the duty and province OF the secretary
Of state to certify the form OF the ballot
and the duty OF the county clerk to follow
1t unless an appeal shall have been taken
from the secretary's decision and the same
is reversed by the supreme court The cer-
tihcate OF the secretary was otherwise bind
ing as to form to conserve uniformity
throughout the state.
Charles J. Greene for respondent pointed
out the provision In section 127 OF the cleo
tion laws, in which provision is made for
the holding OF conventions and securing OF
place on the official ballot by parties that
cast per cent of the total vote at the last
preceding election. He directed attention
TO the blanket ballot used in 1898, wherein
the parties were given separate columns,
each having it's own heading and party en-
blem. Each of the parties represented on
that ballot, he said, filed certificate OF
nomination, which was received by the sec
retary OF state, and its candidates put upon
the ticket, indicating that each had cast 1
per cent Of the total vote at the 1898 elec-
tion The presumption is that these GER
tihcates were presented by parties that had
cast the required 1 per cent OF the total
vote. The vote for Poynter was 95.703:
Hayward 92,sS7, a total OF 1SS,690. II 2 per
cent of this total-3,773 votes--were de-
Quoted from Poynter's vote, it would leave
but 91,930 votes that could possibly have
been polled by the populist party. This
was less than the vote polled by the repub-
lican party for the head of it's ticket.
1T is ridiculous to allow the free silver
republicans to come into court and claim
that party poled 95, 7O3 votes for the head
OF its ticket, and yet, IL the contention Of
| the relators is true that party would
| do 1T, In 1890
the democratic party polled fraction over
| 1l,OOO, the populists a fraction over 70 900
and the republicans a fraction over 6s OOO
| In 1893 the democratic candidate for su-
| preme judge received $4,000 votes so that
wnen frsion was inaugurated in 1894 Il
must have included $4,000 or 10000 demo-
cratic votes
Further, 1t is contended that it is the
duty of the county clerk to prepare the bal
lot and have 1t printed according to the
| statute"
As TO the Meaning of "Polled."
John L. Webster declared that "polled"
IN this instance does not mean the same
as received. for If 1t did," he said, 1.-The
Tree silver republican party could claim that
It, too, had polled 95,7O3, which would be
manifestly untrue, although its candidate
at the head of its ticket received that many
votes, The sample ballot shows conclu-
siVely that the votes for POINTER were polled
by three distinct and separate parties, and
in order for the court to allow writ of
mandamus it must be clearly and positively
shown that some one OF those three parties
cast or polled more votes than the republican
party. Under the law the arrangement of the
names on the ballot is solely within the
discretion of the county clerk and so long as
he exercises that discretion the court cannot
| interfere. Before the court can interfere It
must be shown clearly and concusively
that the officer lis bound by law to do GER
tain thing in certain way, and in this case
1t must be clear to the court before the writ
can issue, that the political party represented
by relators, whatever 1t may be, polled more
| votes than the republican party"
| Mr.. Thomas, for relators contended that
counsel for the county clerk had stipulated
themselves out of court by agreeing that
for two years the democratic party
has had no independent candidate,
but has nominated candidates of the
peoples party, and that the silver republican
party never had a vote of its own.
| At the conclusion Of the argument Judge
Powell expressed regret that a case of such
Importance must be decided upon such
short notice with so little consideration
| and without precedents from the supreme
court. 1t had been stipulated that the sew
eral conventions certified their nominations
| to the secretary OF state, and that Poynter
was the candidate Of the three parties. "In
! the absence Of any showing to the contrary u
he said, 1T must be presumed that a public
officer performs his duty, and in the absence
of showing to the contrary, that the three
parties each cast at least l per cent of the
total vote. The duty of preparing the bal
lots for this county lies with the county
clerk in compliance with the law. and re-
gardless of any action OF the secretary OF
state.
"As to the passage of the law. 1t is proper
to consider the purpose OF the legislature
In tried recently I had occasion tc
examine the new law and the one OF which
1t was amendatory quite fully, and fount
that about the only important change was
to prevent the placing OF candidates name
more than once upon the ballot. It nigh
with some degree of truthfulness have beer
labeled law to prevent fusion, and its evi
dent purpose was to make fusion more diff
cult.
Under my view of the law and the stip
ulated facts can only find that the fret
silver republican and democratic parties
each cast at least / per cent of the tota
vote in the 1898 election, which, subtracte'
from the vote given Mr.. Poynter, left bu
, 81 900 and some odd. or less than was polle
by the republican party"
, The relators at once took the necessar,
preliminary steps to carry the case to tn
supreme court, which, OF course, will hav
no effect upon the approaching election.