The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-05-11
Vexing Question Submitted to
the Supreme Court.
Arguments Are Made Today Be-
fore Full Bench.
MR.. CARVER OPENS.
Discusses Withdrawal of Coun-
ciImen From Case.
Wants to Know Who Is to Ride
With President.


Hughes-Parker mandamus case was
commenced in the supreme court at
$50 o'clock this morning before the en-
tire court
When It came to the hearing both
sides had prepared and printed briefs
which were submitted to the court. G.
g. Clemens, Ferry & Doran and David
Overny yer prepared the brief for Albert
Parker. It covers 81 pages and contains
Judge Hazen's opinion in full. The brief
for Colonel Hughes was prepared by
Carver & Larimer and Judge A. L. Red
den It covers 27 pages.
It was 20 minutes to 10 when Chief
Justice Doster called the appeal of
Colonel Hughes from the decision Of the
district court in the Parker Hughes
mandamus case. Judge T. F. Carver
made the opening argument for Colonel
Hughes He explained the election and
the canvass of the returns when the
canVasserS came to the first precinct of
the Second ward discrepancies were
found" said Judge Carver THE court
finds the canvassing board considered
the tallies and in that way found
Hughes mayor. Parker commenced this
suit claiming that the board of can
vassers had no right to refer to the tai
lies but should have taken the figures
as returned and certified to by the
judges and clerks, and the judgment of
and canvasserS m ust ignore the tallies
and make a new canvass. see here
motion to dismiss on the ground that
we have no right to appear.
Il submit a copy of written authority
from seven Of the eleven members to
act in the case for them and to take
their case to the supreme court After
we had filed this case paper was
brought to US signed by two members
saying they did not wish an appeal
Those two are Myers and Snattinger.
We allege in our petition that these par
ties are made defendants in error.
take it this does not make much differ
ence in the case. For some reason
Mr.. Parker and his attorneys have gone
around and tried to get the councilmen
to say they don't want to take part in
this case and want to keep out OF it,. If
anybody wants to be out of this let
them come into court and show their
hands and say so. It makes no differ
ence to these men who is mayor.
"Col. Hughes has right to come into
this court and say the judgment is
wrong. We will know who is mayor.
Before the president gets here we will
know who will occupy that carriage.
The petition shows that Hughes is de-
facto mayor and this court had decided
that there can not be two officers de-
facto to the same office. There is no one
who can displace a defacto officer except
q de jure officer. The only manner in
which Mr.. Parker can assert a right to
that office is to assert that he is a de
lure OII1Cof ana unless ne claims Ine1I ne
is entitled to the office he can not expect
to secure the Office by this proceeding"
1.-The writ has been issued to compel
the board of canvasserS to say and
make A. and that by that figuring
Parker has II majority" continued
Judge Carver. IF these tallies are
taken 1T will be found that Parker did
not receive a. majority of the votes. If
it is shown by the records that Parker
did not receive a majority of the votes,
he has no right to come into this court
and ask for writ of mandamus.
I'VE concede that technically these
tallies should not be considered, but our
law names the tallies and provides that
records shall be kept and to write down
the names of the voters. The board of
canvassers is to take the record and
decide what was done. The whole thing
makes up the returns of election. We
would like the court to examine the
original poll books said Judge Carver
as he handed the phOtOgra phs of the
tally sheets in question to the judges
to be examined. Judge Garver's argu-
ment consumed about 45 minutes.
MIR. CLEMENS TALKS.
G. c. Clemens followed Judge Carver
with the argument for Albert Parker.
Mr. Clemens said:
This court has no more right to look
at that bill of exceptions than it has
to look a t a kidney cure advertisement.
We are told that there is great excite
ment about the bond proposition. There
is nothing said about the bonds. The
record in this case consists of the alter
native writ, the judgment of the court.
and nothing else I suppose the bill of
exceptions was put in for style. I heard
here a great deal of interesting history
of our tactics in the court below I
find nothing about that in the record.
If a minority of a canvaSsing board
can appeal from a writ of mandamus
then one man can appeal, and we could
have every election tied up by one
mans whims."
chief Justice Doster leaned over to
ston Mr.. Clemens paused for a mo-
ment.
Il don't want this taken out of my
time" remarked Clemens, as he stood
watching the clock.
Did the lower court make any find
ing relative to the tallies as to wnat
was shown or not shoWn2'' asked Judge
Doster.
Attorney Doran read the finding of
tallies claimed for each man. The find
ing of the lower court being that moth
ing could be determined from the unin-
telligible tally sheets
Mr.. Clemens proceeded with his argu-
ment. He pointed to the fact that In
one precinct there were more tallies
than there We're voters shown on the
tallies and the votes cannot be gotten
over said Clemens. THE election COM
missioner law provides that certificate
shall be made and sworn to by the
judges showing the total vote for each
candidate The law throws every pro-
lection around these totals and none
around the tallies You can't change
While the judges are sending the GER
tfficate to the commissioner a clerk