The Greeley tribune., 1908-11-25
CIRCUIT JUDGE CANNOT DECIDE
AN ELECTION CONTEST.
THE VOTE WAS REVISED
Had Right to Supply Omission AMI
Investigate Ambiguous Number
The Judge Could Not Com
pei Board to Canvass.
Poe Will Appeal.

At 10 O'Clock Saturday night
Judge Garrigues denied the writ OF
mandamus sought by Samuel Poe to
compel the county clerk to issue an
election certificate to him. The de-
cision means that Mr.. Florance Will
hold the certificate and the office
and throws the burden of the con-
test, if thre will be contest. upon
the shoulders of Mr.. Poe. After the
decision by the court, Attorney Bot
tom. on behalf of his client. MIR. Poe,
asked for time to file bill OF en-
ceptions to the finding OF the court,
and also for bond to carry
not known whether Mr.. Poe in
tends to start a regular contest in
the county court. or will depend up
on the supreme court reversing the
decision OF Judge Garrigues in tue
mandamus proceeding. If the de-
cision should be reversed and the
upper court grant the writ which
would compel the county clerk to
deliver the certificate to Mr.. Poe, II
would mean that Poe would hold
the office, as the time for filing
contest would be past and Florance
would lose out on the technicality-
If Poe desires to start regular
contest he must do so before Thurs
day of this week, as the law specifies
November 26 as the last day upon
which such contest may be started.
Mr.. Poe will also have to give bonds
for the costs of the contest and pay
the entire amount If defeated. The
costs in the mandamus suit just end
ed have been assessed against him,
In the afternoon Saturday. the court
denied the motion of the defendants
to uuash on the grounds of jurisdic-
ton and overruled their demurrer
which was a denial of the material
allegations of the original writ and
protested sufficient cause for action.
An evening session was held and the
court heard the evidence of the coun-
ty clerk and listened to lengthy ar
guments of council.
Mr. Bottom brought up new idea
in regard to the error of 100 votes
in South Windsor precinct. In his
complaint he stated that the word
ONE had been written over the word
two. He now contends that the
word ONE was not written at all but
that the clerk. who was no doubt
half asleep, had attempted to write
the word S-a-m-u-e-l. Mr.. Poe's
name appears in several places up IN
the same page of the poll book. The
capital IS" can be seen very plainly
and the "a" in connection with the
wv" which has been written over it
might easily be mistaken for an 20,
and this gave rise to the theory that
the word ONE had been written
first However. the letters two are
much palmer than the other char
acters and would be read as such at
casual glance. The law is clear
that the canvassiDg board is but a
ministerial body and has no power
to alter or correct the returns made
by the election judges and clerks.
But there is a section of the elec-
tion law which permits the canvass
ing board to adjourn to any pre-
cinct and require the election judges
to correct any clerical errors or sup
| ply any omissions. 1t is that section
which influenced the decision Of the
Judge. The returns from South
Windsor read as follows:
Florance. (219 Two nineteen.
Poe, (243) Two forty-three.
Wilson. (42) Forty-two.
The canvassing board can consider
nothing but the written words, and
those words in the above instance
mean nothing. as two nineteen ant
two-forty-three mean nothing legal
ly. The word hundred" has beer
omitted in each instance. The wore
two" is ambiguous and is a clerica
error. According to the Judge. il
was the duty of the canvassing boart
to require the judges of election t.
supply the omission and state theil
first decision as to the ambiguou,
word. According to the evidence. NJ
former decision of the election
judges has been changed and no ref
erence to the tally sheets has beef
made in supplying any omission O.
argued that 1t was not possible I,
give Mr.. Poe 243 votes when the to
tai number of votes polled was onl,
4O7. There we're 500 blank ballot
delivered to that precinct, all mum
bered. and 393 were returned
which were numbered from 4OS t,
500, inclusive. The attorney for Mr.
Poe contended that Mr. Floranct
might have received 243. Mr.. Bot
tom also called attention to the vot
in that precinct for county Judge
|, The ofiicial returns showed tha
Downey. Bradfield and the socialis
candidate had received 421 votes
although there were only 407 vote
cast, according to the poll book.
In rendering his decision the cour
stated that he should have sustaine,
the motion to quash and also the de
murrer, but allowed the case to pro
ceed on the allegation of the plain
tin that at the time the writ wa
filed the canvassing board was can
vasslng the tally sheets. which wa
wholly without their province. TIL
evidence showed that they wer
merely canvassing the returns. Th
court stated that he had the powe
to compel them to canvass the re