Los Angeles herald., 1909-11-21
COURT TODECIDE
IMPORTANT ISSUE
IN RECOUNT CASE
WILL PASS ON VALIDITY OF
PROBE INTO PRIMARIES
ARGUMENTS MADE BY ATToR-
NEYs FOR CANDIDATES
Smiths Counsel Declares There Is No
Provision for Inquiry Into the
Result of Primary
Elections

Judge N. p. Conrey Of department
five of the superior court will decide to-
morrow morning whether the courts
have a right to inquire into primary
elections, when he will render a decls-
ion on the motion of George A. Smith,
mayoralty candidate, to set aside the
proceedings brought by w. c.. Mushet'
mayoralty candidate at the primaries,
asking for an official court recount or
the ballots. Arguments were made Tor
four hours and a half yesterday before
Judge Conrey by attorneys representing
Smith and Mushet. The case finally
was submitted to Judge Conrey shortly
after 4 o'clock, but because Of It's being
a legal holiday Judge Conrey put the
matter over until Monday morning. lie
has given absolutely no intimation or
his judgment
If Judge Conrey holds that the cita-
tion which was issued against smith
at the instance of Mushet, calling
Smith into court, is not valid WITHIN
the meaning of the code Of civil pro-
cedure, then the contest between the
machine candidate and the enemy o.
the school bonds will end.
If Judge Conrey holds that the cita-
tion Is valid, then the Smith forces will
have to reply to the original complaint
charging that Smiths name should not
20 on Lne DdlOl, anu utlldilulHB ~ iS-
rount to prove it. In this latter case
Smiths attorneys will have to enter an
appearance in the original case, which
will come up Friday. Smith will then
have ten days, according to law, IN
which to file his answer, which prob
ably will be in the form of a demurrer
to Mushet's complaint which charges
the 1900 election officials with NAL
conduct at the primaries.
Il MeSprVa npDpaTeQ as chief COun-
sci for Smith and conducted the argu-
ments In Smiths behalf. Mr.. Meserve
was assisted by John Mott of Mott e.
Dillon, Dudley Robinson of Willis d
Robinson, John r. Laying and Richard
son & Martin. Judge John d. Works
and his son, Lewis r. Works, argued
Mushet's side of the controversy. AS
sisting them were w. c. Craig, Gessner
Williams and w. II. Sparks.
Declares Election UnassailabIe
Stripped of it's legal verbiage, Mr..
Meserve's argument was to the effect
that the primary election is not an cleo
ton which entities the elected men to
hold public office: that there is no pro-
vision in the statutes for the recount
ing of cotes cast at n primary, and
that that provision was omitted by the
last legislature purposely so rs to pre-
vent contests under the direct primary
y
is placed upon the ballot through fraud
at the primaries, and he subsequently
is legally elected to the office, that fact
does not invalidate the election, and is
not grounds for a contest Of the office
by defeated candidate; that the pro-
ceedings now before the court are ille-
gal because they should have been
brought by a regularly qualified elector
and not by a candidate; that the true
legal method of bringing the action by
Mushet was either by a proceeding in
equity or by a mandamus of the city
council sitting as a canvassing board;
that If Judge Conrey holds he has a
right to inquire into the primary cleo
tion, he will have to constitute himself
a special election commission, and as
such will have to certify Mushet's
name to the city clerk If 1t is found on
examination that Mushet is entitled to
a place on the ballot; that such action
would be Illegal, as there is no provis-
ion in law for it; that If Judge Conrey
does desire the ballot boxes should be
opened and the ballots recounted, there
is not time enough i'm which to investi-
gate and count the ballots, as the
names of the two candidates selected at
the primaries as candidates for mayor
must be placed on the official ballot by
the city clerk at least ten days before
the election, or in the present instance
next Saturday, and that il is impossible
to count 1000 ballots in the manner
they must be counted in one day, even
though the Smith forces waived every
right they have in law; and that any
judgment rendered by the court cannot
become effective until after the election
is held. Mr.. Meserve quoted a mass of
authorities in support of his conten-
tions
Lewis R. Works argued that NAL