The San Francisco call., 1904-10-06


but there was often shaft that was
intended to sting, for the factional feel
ing in the Thirty-nint is oftentimes
bitter.
MANN NOT NEAR POLLS.
The last witness was S. H. Mann.
whose name Wyman is accused of hav-
ing voted. He testified that he was
not near the polls on primary day and
declared the signature of his name on
the roster to be a forgery. He is a
special policeman and on the day of
the election was not living at the place
designated in the register from which
the defendant copied.
Countryman had him write his sig
nature and afterward declared that he
would prove that the name on the ros-
ter was in the same handwriting.
Judge Cabaniss continued the exam
ination to Monday at IL o'clock
The police have obtained no clew to
the whereabouts of Adolph Steffens,
who was indicted by the Grand Jury
for fraudulently voting the name of C.
c. Crew in the Seventy-third Precinct.
Some of Steffens' friends give the as
surance that he will be on hand when
the prosecution is ready to go ahead
with the case. The indicted fireman
figured in yesterdays proceedings,
Wheelan describing him as one of three
men who were locked inside the booth
at o'clock and allowed to vote after
the polls were closed.
John A. Hosmer, special prosecutor
employed by the Merchants Associa-
ton, said yesterday that several more
arrests for fraudulent voting at the
primaries will in all probability soon
be made.
FAILED TO EXPLOIT GOOD POINT.
The decision of Judge Sloss yesterday
does not greatly strengthen the status
Of the primary law. He refused to un-
dertake passing upon it upon its con-
stitutionality and passes the question
to the Supreme Court. To him the con-
tention of petitioner that failure to re-
enact a statute providing for penalties
for violation of the primary law de-
prived the law of punitive value has
considerable force. Counsel failed
however, to support his argument with
any citation.
When the primary law of 1899 was
passed section 641a was enacted, provid-
ing that violations of 1t were to be pun
ished in the same manner as for viola
tions of the general election law. The
Supreme Court declared the primary
law of 1899 to be unconstitutional, and
Attorney Countryman contends that
section 641s fell with it. The Legisla-
ture did not re-enact section 641b when
it passed the primary law Of 1901.
The following is Judge Sloss' opin-
ion:
To succeed in this proceeding the petitioner
must show that the acts in question arc
clearly and unquestionably in conflict with the
organic law, 1t is thoroughly we'll settled that
no court will declare legislative act uncon-
stitutional where there is a reasonable doubt
as to the validity Of the act; And this rule
Three principal points are made by petit
tioner
First-It is urged that section 64H Of the
Penal Code is invalid in that the act of IS99
adopting 1t failed in its title to declare the
subject of the act. and that the section amends
tions at length
II / think there can be no question that the
the State Of California, by adding a new Sec
tion thereto, to be numbered 64L relating to
elections. by providing for the punishment Of
offenses at primary elections" definitelv eS
presses the subject of the act within the mean
ing of the constitutional provision invoked
Nor Is the act adopting section 64A of the
amends sections 40 to 81, referred to in sectto1
641k. without re-enacting such sections The
provision requiring laws amended to be ra-
enacted has no reference to statutes which
merely amend others by implication. Section
641a does not purport to amend any other
section 1t is supplementary legislation, which
leaves entirely unimpaired the force of the
sections to which it refers.
Secono-it is urged that as section Gal was
adopted In 1899 1t had reference to the primary
law Of that year, which was thereafter de-
clared unconstitutional and that with the fail
OF the law providing for the only condition upon
which 64h could operate this section itself
fell, and was not revived by the passage of a
later primary election law. The point has
apparently considerable force. but in the ab.
sence OF the citation OF any authority in its
support can hardly be regarded as affordine,
sufficient warrant for this court to declare
section 64h imperative
Thrd-The main attack of petitioner is on
the act of 1901, pursuant to which the primary
wa hall he
the law principally assailed is the one which
gives certain privileges to political parties
which polled 3 per cent of the total vote at
the next preceding election 1t is urged thai
this violates both the Federal and the Stafs