The San Francisco call., 1909-09-19
PRIMARY CASE MAY
GO TO HIGH COURT
Argument in Contest of Fickert
Against Heney Completed
Before Murasky
Attorney for Candidate for the
Three Party Nomination Is
Embarrassed by Question

Embarrassed by Question
Argument in the election contest
filed by Charles NJ Fickert against
Francis ]. Heney. the democratic can
didate for district attorney, was COM
pleted before Superior Judge Murasky
yesterday, and The matter was taken
under advisement by the court. If the
Judge sustains the demurrer filed by
Matt Sullivan and Henry Eickhoff on
behalf Of Heney, the contestants will
have to take their case to the supreme
court in order to obtain a recount If
the demurrer is overruled, it is ex-
tremely likely that the contestees will
carry the matter to the higher court.
In either event the moot question
whether Charles NJ Fickert as a re-
publican candidate, had the right to
contend for, or receive, the union labor
or democratic nominations, viii be dis
posed of.
COMES WITH BAD GRACE
The dry proceedings were somewhat
enlivened by a passage at words be-
tween Ira S. Lillicil, counsel for Flick
ert, and Matt Sullivan. Lillick repeated
his statement of the day before that
Heney had stolen the nomination, tenn
pering the harshness of the expression
by excluding Heney's attorneys from
any blame. In his closing argument
Sullivan retorted that the charge of
stealing a nomination came with very
bad grace from Fickerts attorneys.
There are many slips between the
election booth and the registrars Of
fce" said sullivan, ''and ii would not
be beyond the powers opposed to
Ideney TO induce election officers to
Iamper with the ballots after they left
the booths. We are very 10th to have
the ballots opened because it is our
opinion that they may not be in the
condition they were in when they left
the hands of the voters"
Fickert's attorney was somewhat
embarrassed when Judge Murasky re-
ferred to the pledge of support ex
tended TO Heney by the democratic
convention Friday night
Suppose Fickert should gain the
nomination. said the court; would he
not he placed in an anomalous posi-
tica?'
POINTS at ISSUE
In concluding his argument, COM
naenced the day before, Lillick cited
cases to show the sufficiency of the
complaint in regard 10 the allegation
that I04 votes had been cast. but not
counted for Fickert- He pointed out
what he termed the fallacy of Sulli-
vans argument on the conditions sur
rounding the printing of a candidates
name on the ballot, as well as those
surrounding the writing in of a name.
The primary law" said Lilick, does
not say that Fickert may not have dem
o-ratic votes counted for him."
cur point is" interrupted Eickhoff
that Fickert declared his fealty to
the republican party and is barred from
contesting the democratic nomination.
No candidate can make affidavit that
lie represents two parties The supreme
court has declared that he may accept
one nomination only
There is no provision in the pri-
mary election act" Lillick persisted,
(Which prevents the counting for Flick
ert Of votes cast for him on the DEM
ocratic or union labor ballots"
DISPUTE As TO .BALLoT"
There was dispute as TO the mean
ing of the word, ballot" Sullivan in
sisting that, under the codes, it was
generic name for all the tickets fgur-
ing in the election; Liilick taking the
view that il referred to the separate
tickets only. Lilliek said that a voter
must vote his party ticket, but that he
was not debarred from voting for
candidate not of his own party. He
read from Justice Angellotti's opinion
in the direct primary case, insisting
that it was a concurring opinion,
but Judge Murasky pointed out that
Angellottf did not agree with the other
justices in the particular point under
dispute
THE whole case of the contestants"
said Sullivan in closing the argument,
''is based on the affidavits of unknown
and obscure atlantis. The statement
that lo4 votes were cast. but not count
ed for Fickert is a mere deduction and
false deduction at that, for it is not
horne out by the affid1vits, although
the complaint states that the alleged
frauds are set forth with more partic-
ularity in the affidavits.
Every democrat who voted for Flick
ert violated his oath of allegiance to
the democratic party. The idea of
Fickert a republican. coming into
court and trying to obtain the demo-
cratic nomination. His is a shameful
position, while Heney's is an honorable
one.
If a democrat had the right to vote
for Fickert, he also had the right TO
vote for Crocker and all the republi-
can candidates, and the same rule
would apply TO the delegates to the
convention. He could elect republicans
10 frame the democratic platform
Would not that be violation of his
oath of allegiance to the democratic
party?