The San Francisco call., 1909-09-18
F|CK[RT SEEKS
REDUCTION OF
HEN[YS VOTES
Court Asked TO Put Name of
Republican Candidate on
Democratic Ticket
Judge Murasky Hears Argu'
ments Against Suficiency
and Legality ofyCOmpIaint

superior Judge Frank }. Marasky
heard argul.erlt yesterday in the pri-
mary election conQest begun by Charles
N. Fickert in an effort 10 wrest the
democratic nomination for district al
torney from Francis>J. Heney.
Matt sullivan and Henry Eickhof,
as attorneys for Heney. filed de-
1nurrer To the complaint and sullivan
made long argument. Ira 5. Lillick
followed as attorney for Fickert, but
had not completed his argument when
court adjourned soon after noon. The
argument will be continued this morn
ing at 10 o'clock.
Both sidas joined with Thomas Y.
Gator. the president of the election
commission and j. II. Zemansky, the
registrar OF voters. in requesting an
early deteriDina tion OF the question BY
Judge MurasJ1y. The official ballot for
the November election Will go TO print
about October >. and all matters a [ is
sue must be settled by that time.
COMPLAINT CALLED DEFECTIVE
ELECTION Commissioner Gator, in be-
half OF the election commission and the
registrar. filed an answer to the order
10 show cause, stating that the ofhcia
canvass of the election returns showed
that Fickert received >. 2.29S votes on the
democratic ticket and Heney 1885, and
denying that the election commission
or the registrar had any knowledge OF
l0B votes which 1-ere cast for Ficlaeri
nut not counted. as alleged in the coL1-
plaint. on this account, said Gator. IL
would be impossible for the election
commission TO compN with the alterna-
tive writ at this time
The demurrer filed by counsel for
Heney specified that She complaint did
not state facts sufficient to constitute
q cause OF action or a cause of contest;
that the court had no jurisdiction; that
the plaintiff, Fickert, being the republi-
can nominee. had no legal capacity to
contest the democratic nomination.; that
there was a defect of parties defendant
in that the election officers who were
ALLEGED 10 have committed errors were
not made parties to the suit. and that
there was A mis- 5oinder of parties de-
fendant.
VOTERS CALLED LAW BREAKERS
sullivan also pointed out that the pri-
MARY election law provided the only
method of contest and that its pro-
visions had no7 been followed by Flick
ert. He read section - of the Law,
which covers this point He pointed
ont that a serious charge had been
made against certain election officers
and that they were entitled TO their
day in court. Notwithstanding which
fa,.t fhev had not been made parties to
the suit.
sullivan also pointed out hat the pri-
mary election law was designed TO pro-
tect the integrity of political parties
and that. under the decision of the SUI
n q voted
for as the democratic candidate. lie
declared that it was against the law TO
vtitc on the ballot the name of any
candidate whose name was already
printed on the ballot.
Every democrat" said Sullivan
who voted for FickeTt violated his
oath by voting for a candidate OF a
rival party. His vote should be thrown
out. The 1000 and odd votes cast Tor
lrickert should have ben thrown out
,,nder the law and the decision of the
.rlspreme court.
PROTEST AGAINST ATTACK
That th. complaint did not state
material facts was another contention
made by sullivan. He showed that the
afidavits affixed 10 the complaint ac-
counted only for a few votes which
had not been counted for tickert ano
that there was no showing that these
votes would have materially changed
the result of the election.
IslIick started his counter argument
by accusing Heney of having stoler
the democratic nomination, his Ian
guage bringing a dignifed protest
from Henry Eickhoff-
Ifllick said that il was the purpose
ef the act to arrive AT the viii of the
electorate and not TO allow candidates
10 take advantage of technicalities Tie
Joined in the suit because they hat
not been culpable.
The election officers need not b'
made parties." said Judge Murasky
unless the court decides that the con
test must be conducted under section
. Of the new law.
IdIIick pointed out that the machin
cry for a contest was defective anS
mat any suitable procedure was al
lowabie. To prove the gravity of th'
contest he declared that unless Flick
ert received the. democratic nomina
ton he would probably be defeated a
The polls He said that great liberalit!
should be allowed by the court il
granting contest, and the affirmation
that 1O4 votes had been cast for Flick
ert but not counted was sufficient
basis for q contest.
Judge Murasky called Lillick's at
iention to the point made by Sulli
van. that there was no showing tina
The alleged errors would change tn
result. but Lillick reiterated that tn
positive allegation regarding 1O4 vote
covered this ground.
Before Judge Murask adjourned TIL
argument. Election Commissioner Ca
tor. in asking for speedy decision
pointed out to the court that the mat
ter of Fickert having received tn,
union labor nomination by the writ
ing in process would probably be teste,
in the supreme court