The San Francisco call., 1909-10-02
HENFY'S NAME ON
BOURBONS' BALLOT
Order of Supreme Court Will Be
Observed by the Election
Commission
Arguments on Fickert's Appli-
cation for Recount Heard
by Judge Murasky

With President Thomas Y. Gator OF
the election commission disagreeing
generally. If not specifically, with most
Of the contentious raised on both SIDES
of the application for a reopening OF
the Fiekert-Heney contest anu re-
count of the democratic ballot Judge
Murasky listened to arguments all day
yesterday and arranged for an early
start this morning.
Resolved to fundamentals, yester-
days proceedings in Judge Murasky
court developed a peculiar state OF ais
agreement among counsel ira >. LII
lick for Charles NJ. Fickert contenos
that the direct primary law provides
for a recount and gives the court that
chancery jurisdiction which would en-
able it to conduct a recount
CONVENTIONS OF COUNSEL
Matt l. Sullivan for Francis j. Heney
insists that the direct primary election
law does not provide for recount ano
that if il does Lillick's pleadings do not
show cause of action. They do not
question the courts jurisdiction.
Thomas V Gator is unwilling to ad-
nit that the court has Jurisdiction he
bases his contention on the ground that
Lillick failed to bring his action within
the time set by the statute rather than
on the ground of misioinder of parties.
which is one of the contentious made
by Sullivan.
Indeed, Gator contends that it does
matter particularly what mistakes
were made in the matter OF Joincer of
parties. He agrees with Sullivan that
no cause of action has been shown. He
takes Lillick's side of the argument in
that he does not assign tnar as his rea-
son for denying the courts jurisdic-
tion.
I Z
Gator agrees with sullivan that Flick
ert's pleadings are faulty, and finally
| he disagrees with both sides in so far
as they believe or admit that the
pleadings can be mixed in the event
that the court should overruie the de-
murrer interposed on behalf OF Heney.
Gators argument consumed the
morning session, throwing Lillick's
affirmative argument over the recess
and the major portion of the afternoon
was devoted TO a free for all discussion,
leaving Su1livan's argument and Lii
lick's reply to be made today If pos
sible.
/ For Fickert, Lillick argued that the
direct primary law specifically provid-
/ ed for a contest, which provision meant
a recount and necessarily gave the
court the right to open and count
! the ballots.
DISPUTE ABOUT CONTEST
LilIick contended that he had set up
eight specific instances of mistake
which if confirmed would establish his
assertion that Fickert had received a
majority Of the democratic vote cast
for the nomination of candidate for
district attorney. He insisted that he
( had esta bIished Fickerts right 10 a
recount by the undisputed afidavits in
! his complaint, that contest could only
mean a trial
Gator put Registrar of Voters Ze-
mansky on the stand to prove that it
would be a physical impossibility to
complete the printing of the ballot in
! accordance with law if the copy was
not sent TO the printer today. He then
4 argued that in view of the fact that
the legislature had set the date of the
! primary election for the third Tues
day in August and that previous pri-
/ mary enactments had made no provi-
sions for contests; that the provisions
Of the direct primary law showed a
! legislative intent to provide only sum-
mary reliefs, and not those that might
result from a trial in which the ballots
might be examined under the rule OF
either secondary or best evidence.
1 TWO QUESTIONS FOR COURT
With Sullivan. Gator insisted that
Lillick had brought his action under a
section of the law which did not run
TO a contest; that he had demanded the
| correction of mistakes by the registrar
and election commissions who had
made no mistakes; that the order Sc
! cured from the court was not the order
provided by the law and that the action
/ could not now be brought under an
other section of the law because the
time fixed by the statute had elapsed.
When the court adjourned last might
the issue apparently had been reduced
! TO two main questions-the Jurisdiction
! of the court as affected by improper
original pleadings and orders and the
! construction TO be placed upon tn,
/ word contest as used in the statute
In any event. the ballot is to go to the
1 printer today with Heney's name on il
as the democratic candidate for dis.
trict attorney in compliance with the
| order of the supreme court