Los Angeles herald., 1909-11-19
SMITH FORCES
THROW GAUNTLET
TOW. MUSHET
CLAIM MADE THAT PRIMARY IS
NOT LEGAL ELECTION
If FIRST STEP is LOST, 1000 MEN
WILL BE sUBPoENAE0
Threat Openly Made by Machine"
Committee That Long Contest
viii Be the Out
come

N GORGE A. SMITH, Republican
machine" nominee for mayor, has
~ stolen one more march on w 9.
| Mushet, enemy of the school bonds,
and has issued his defiance in a legal
! document filed in the superior court
yesterday against the fight for time
that the Mushet forces seem deter
mined TO make
! According to the legal defiance, at 10
! o'clock Saturday morning the ma
chine" candidate will appear in the su-
! perior court and will move that the
citation obtained by the Mushet forces
in the fight for a recount of the pri
mary election ballots be set aside on
the ground that the primary was not
an election contest, within the mean
| ing of the code of civil procedure and
! that there is no provision in law for
/ the issuing of such a citation.
/ The legal step taken by Candidate
Smith was signed by Attorneys Edwin
A. Meserve, Willis and Robinson, John
r.. Laying, Richardson and Martin, and
Mott and Dillon.
! At the bottom of the notice was the
following order signed by Presiding
Judge Curtis d. Wilbur: Good cause
therefor appearing. it is hereby or
dered that the time for serving the
foregoing notice be and is hereby shor-
tened to one day."
Committee Issues Statement
The following statement in regard
| to this latest step in the primary fight
was issued by the executive commit
tee of the Republican city central COM
mittee last night, signed by D. G. Cas-
selman, chairman, and Dudley Rob
inson, secretary.
viii Settle First Point
This will settle the point as to-
whether or not the statute concerning
election contests applies to a primary
election held under a city charter If
the court decides that it does apply,
then the question as to whether the
general allegations of the petition are
sufficient to permit the ballots to be
openoi and inspected will be argued
on the 26th. This will still leave open
the question as to whether the sweep
ing charges of malconduct of 1000 cleo
tion officers in 200 election districts can
be proved.
Mr.. Meserve and his associate
counsel believe the whole question of
the legality of the proceeding can be
settled on Saturday morning. No
greater haste could be expected IN
such an important matter. However,
in order to continually expedite mat
ters in case the court decides that the
demurrer shall be heard, counsel are
diligently preparing to be ready for a
f II discussion of the issues on the 26th.
Furthermore, Mr.. Smith, with his
counsel, will be ready, should the court
order it, to go at once into the ques-
tions of fact contained In the petition.
THE petitioner charges malconduct
to 1900 men. All of these men were
under oath to support the constitution
and perform their duties honestly. If
the charges can be proved as to anyl
one of these men he can be punished
criminally. Counsel advised that these
charges must be both generally and
specifically proved or dlsproved.
Therefore they will require that every
election officer shall be brought into
court to testify.
George a. Smith at all times has
been anxious to bring the question of
the pending primary contest to an issue
at the earliest possible date. He has
been advised by his counsel that the |
issues of law and questions of fact
involved in the petition filed by Mr. |
Mushet cannot be considered by the |
court before November &c, the date set |
by the presiding judge. The law pro-
Vides for special session of court to |
be appointed for such a case as is |
attempted to be shown here. Stipula-
tions by parties or their counsel cam
not change or advance the date. Every
effort has been made by Mr.. MeserVe |
and other counsel of the campaign |
committee to expedite proceedings in |
every manner consistent with legal re- |
quirements. Mr.. Meserve, who is most
conversant with the details of the case, |
has been continuously engaged in the |
United States court, and thorough |
consideration with his associate counsel |
of the issues involved and the complete |
course to be followed has been impos- |
slble until today.
while the Mushet petition cannot be |
tested by demurrer until November 26, !
counsel advise that the court can con- |
slider at an earlier date a motion to set |
aside the order and citation to appear |
in court on the grounds that this pro-
Ceeding is not an election contest with |
in the meaning of the provisions of the |
code of civil procedure and that such |
a recount as is asked for would not be |
valid in primary election. Therefore. |
an application was made this afternoon
to the court to hear such a motion at
the earliest possible day.
Preparing for Long Fight
duplicate subpoenas are being pre-
pared and original subpoenas will be !
taken out tomorrow morning for cleo |
tion officers The subpoenas will be /
ready by Saturday night so that, in
case the petition is not dismissed in
court that day there will be ample !
time to serve the election officers and |
such poll watchers as may be neces- !
sary before the following Friday.
"This course has been planned to |
comply with Mr.. Smiths desire to set |
at rest in the public mind all ques-
tions as to the validity of the con- |
test. if possible. Mr. Smith and his |
campaign committee have full conf |
dence in the outcome of the court |
proceedings Should it be found that !
the law will permit a recount, they |
will be prepared to proceed with it |
with confidence that the only result |
viii be to confirm the official canvass |
The campaign will proceed"
Killed by Contact with Live Wire
ROSLYN, Wash. Nov. 1S.-A heavy !
sleet storm today broke down many |
electric wires. Barney Rostagna. |