Great Falls tribune. [volume] (Great Falls, Mont.) 1921-current, 1921-11-16

delivered by the election judge
The necessary postponement of dis
posal of this feature of the hearing
permitted the bringing up of the phase
involving the unconstitutionaity of the
absent voters law, which has great
bearing upon this action, and it had
been under discussion for some time
when court was adjourned for the day.
Judge Sanner had gone into the Ge-
fense of the law to considerable
extent when adjournment was suggest
ed by the court, and this brought cut
statement by Judge Rasch that he
did not dissent from the viewpoint
which the opposing counsel had assum-
ed in his defense, but rather that it
was the intent of the constitution that
a voter must cast his ballot in person.
The argument will be resumed Wednes-
day morning.
favorable to Hobson's case, was aG-
mitted Tuesday, over the objections, OF
the defense, it is matter IN the dfs-
cretion of the court as TO how much
Of this testimony shall finally. be per-
mitted to stand, as the court is sitting
as a court in equity and can allow more
latitude in the matter of evidence than
might be permitted were the evidence
to be presented before jury.
Opening of Boxes Fought
Virtually the entire forenoon session
was consumed in argument Of counsel
regarding the right to open the ballot
boxes or to take into consideration the
votes alleged to have been cast in the
West Garneill precinst. but which were
not returned by the judges OF election
to the Fergus county canvasslng board
This argument was precIpltated
through the attempt OF the plalntlff TO
question Hugh r. Dawes, judge OF
election in the West Garneill precinct,
as to the counting and returning OF bal
lots on the county seat matter cast in
that precinct
Judge Sanner Of the defense imme-
diately interposed an objection to the
introduction of evidence along this line
upon the grounds that the complaint
does not state a cause of action or any
grounds in cogniZance in equity, that 1t
is not competent by this witness to pre-
sent testimony in impeachment of the |
West Garneill returns. that the pur- !
pose of the examination is to lay the |
foundation for recourse to the ballot |
box of that precinct which ballots are /
legally dead, that the court sitting in !
equity cannot count the votes OF West |
CARMEL or 60 behind the report of the |
board of canvassers, that there are no |
allegations of fraud or malconduct upon |
the part Of election officers in that
precinct and that the only allegation
is that no returns were made by the
Judges of election and that, according
", none can now be made or can
vassed.
Lost Their Chance Said Defense
In support of his objection, Judge |
Sanner argued that this is not an cleo
ton contest as, under the state law,
there is no such thing as an election
contest in the case of the location of a
county seat, and that plaintiffs only
remedy, by court of law. was to COM
pei the election board to return the
ballots and compel the county board
to canvass them. He claimed plaintiff
had already passed by the only resort
which the supreme court says is open
to it.
He argued that, under the law, bal
lots are legally dead II months after
election unless a contest has been in
stituted, whereas this matter is not a
contest, and that the only instance in
which ballot boxes may be opened is
where fraud or mistake are alleged
neither Of which he held had been
charged in this case.
Court OyerruIes Defense
Judge Rasch, arguing for the plain
tiff, said a mandamus was not available
in this case as the functions of the
election board had ceased when the re-
turns had passed out of its hands and
at the same time the canvassing board
was not subject to mandate for the
canvassing of returns it had never re-
ceiyed. He also held that none of the
questions raised by Judge Sanner were
pertinent and that most of them had
been disposed Of on demurrer. Judge
Sanner, however, denied that any of the
questions had been disposed of on de-
murrer and that even though they had
been so disposed of such action would
not prevent their being brought up
again at any time.
The objections of defendant counsel
were then overruled by Judge Carroll,
who advised counsel that he did not ]
wish to be misunderstood as Indicating
by his action any order to be hereto
fore made relating to, the opening of the
ballot boxes and that he reserved the
right to determine if it would be neces-
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