The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-04-02
GROSS ABUSE Of POWER
Judge Clancy Commanded to
Hear the Motion.
IT WAS UNJUSTIFIABLE
A Full Return Required to Be Made to
the Supreme Court April mo
Authorities to Justify
Stay.


tana receivership matter was again be-
fore the supreme court to-day in the
form of arguments for and against a
peremptory writ of mandate command
ing Judge William Clancy to hear the
various motion of the +. & NJ. making
certain date. Yesterday the court or
dered him to answer the alternative
writ of mandamus to-day. The Mon
tana Ore Purchasing company's attor-
neys accordingly presented the answer
to the court this morning.
1t recited in brief that the lower court
had intended to hear the motions March
80; that the date was subsequently
made March 1S, and that after this des
ignation he was served with a writ of
prohibition; that when March Is ar
rived he was engaged in hearing trial:
that March y an alternative writ of
mandate was issued and served upon
him: that March 80 the defendant had
the case of Hanly VS.. the city of Butte
on trial and there We're several other
matters set for hearing: that believing
the mandamus was not justified and
had been prematurelr brought. he
moved the supreme court to set aside
the writ and dismiss the action and
postponed the hearing he had previously
set for March 30 to April I; that learn
ing of yesterdays action by the su-
preme court dismiSSlng the writ of pro-
hibtiOn and overruling the motion to
quash the mandamus he had changed
said order and set April at 3 a. m. as
the time for hearing the motions: that
if not heard then he would hear them
L. Il
to hear or determine said motions and
applications until required to do so by
the supreme court: that no order of
this court is now or ever was necessary
to require on compel this defendant to
hear said motions or applications, and
that it is and was entirely unnecessary
for the plaintiff (B. & NJ to institute
this action. as it is unnecessary for it to
seek to maintain tbs #snIn or procure n
writ of mandate against this defendant
(Clancy): that the statements in the
affidavit rejecting on the defendant the
defendant believes to be wholly imma-
terial" and that defendant declines to
notice the same.
w. w. Dixon and William Wallace,
for the B. & NJ, and Governor Smith
and w. E. Cullen for the NJ. 0. p, or
Clancy, then ado essed the court, pro
and con. for a peremptory writ Mr..
Y
spoke of employees of the B. & M, armed
with pick handles and other weapons,
guarding the property and refusing to
admit the receiver. Mr.. Wallace said
he hoped the court would not be misled
by the gentleman's pyrotechnics. The
b & NJ counsel also asked for stay.
The arguments lasted until nearly noon,
when the court announced it would pass
upn14 the matter at O'Clock.
/. Il J. hN1S SNIE1 r
that the peremptory writ should issue,
but that it knew of no authorities that
would justify stay. Governor
Smith Informed the court that
he had positive advices that
Judge Clancy was hearing the mo-
tions then. After some questioning of
counsel as to when the writ should be
made returnable, the court first fixed
April 10, then changed the final date to
April Z. In announcing its conclusions
the court said:
"In the matter that was submitted this
morning we have after an examination
of the record come to the conclusion
that there is sufficient alleged in the
application, particularly in view of the
condition of the answer which has been
interposed here and which alleges no
reason why the writ should not issue,
being more or less evasive in its ex-
that the writ asked for should go di-
recting the district court to hear these
various motions on or before April 3
next Monday morning; and that he
should pass upon them as speedily as
may be after that. We cannot control
the court below in the matter of look
ing into what is submitted to him and
pass upon it.
Now, as far as the stay is concern
Of hf
authorities which we could find which
would authorize us to grant it in this
proceeding, because that would be de-
termining an application for a writ OF
mandate from an application for writ
of prohibition and granting the relief
| on this application that would be grant
ed in an application Of that kind. We
do not think we would be authorized
to issue the order to stay. This lis a
matter the propriety of which we have
| to leave to the court below to be the
| judge of"
A writ in accordance with this rul-
| ing was issued and the marshal of court
| departed for Butte with it tonight
| The peremptory writ reads as follows:
Whereas. 1t manifestly appears to us
| by the affidavit of Ransom Cooper on
the part of the said Boston & Montana
| company that in a certain case now
| James Forester and John MacCinnis
| are the plaintiffs and the Boston &
Montana company, the relator herein
| and others are the defendants, Thomas
| r. Kinds was on the 18th day of De.
| cember, 1898. appointed a receiver OF
| the said relator and all of it's property
| and effects with authority and direc-
| ton to take possession of the property
| of the relat0r. which was then in the
| hands of the New York company; and
| afterwards. on the 9th day of Fehru-
| ary, 1899 the said relatOr herein filed
| in said cause and served upon the at
torneys for the plaintiff herein its mo-
| ton 20 vacata said order appointing
said receiver ana to discharge said re-
| ceiver, and also its motion to stay pro.
| ceedings under the order appointing the
| said receiver and its motion to require
| the said receiver to furnish an addi.
| tiOnal bond in the sum of $4,000 600
| which motions We're set for hearing or
the 4th day of March, 1899. at whiCl
time the same were by the said distric