Show I ETEGTIN CASES K ARE GLOSBl Application for Writs of Prohibition Pro-hibition TaKen Under Advisement SO IBIATIG TSTiON Joe E OBrien Tells Strange Stories Sto-ries About Ballot Box Stuffing f zzy Grnnu Told Him flu Lon mrns TVonId Give SOO io ITtwe 1 the Boxen Stntfetl So as to Defeat Hnrvoy Hardy For SlierinT ana r Elect Lcw1gP I ajttd Sra dt rr r lAixntxn Deny ilie Story In the Mont Joaltlva Mitnncr TJie 11YI tenons Grcnnc Is MLcdntli pprncl U W Sloan nntl Sug g Jtei non Results Might Ea11y Be Chug d Testerday was another wearisome dayspent In bearing the Third precinct election cases in Judge Bartchs court Beveral incipient sensations were Bprung especially dung the examine ton of Detective Joe OBrien a wit TJBSS for the petitioners but the general gen-eral feellngr by those engaged on both sides of the case was one of languor characterized by a very evident desire to be done with the business Both sides have Tiad their fill of it and are thankful that the end Is about reached The cases were submitted to his honor 3ast night and a ruling as to whether the writs of prohibition shall be grafted or denied is expected today If itfewrits are granted the Utah com ri ion will be unable to decide who Is fleeted and the question will have to 6p5eclded if decided at all by the constitutional convention itself when it meet The first witness called yesterday morning was George Iiambourne Ha said he was outside poll 2 Third pre Inct all election day and was present > t the court in the evening Witness was asked to describe the plan adopt in counting and did so The ballots were tallied as announced He > saw some boxes dn the refreshment tent between be-tween 3 and 4 oclock on the following morning a man named Katz being Inch In-ch rS of them When the judges gpt through with the oallots for constitutional constitu-tional candidates ail the ballots tonal candid l balota were put back t the box Detective Joe OBrien Joe E OBrien next testified that he Jtaew a man named Joseph Grennan He left Salt Lake however two or three weeks ago Witness met Gren nan In this city bout November 111 last and accompanied him a far a George Blairs house up the Canyon road On the way thence Orennan said he wanted t see Tom L wisin whose interest he bad been working elected to the office of county sheriff over Harvey Hardy and that he could get 400 or 500 for stuffing the box 5n the Second precinct Judge Powers objected to this testimony testi-mony as it bad reference only t the election of sheriff and to the Second precinct but the court overruled this Ire t to the objection Witness stated that they met Blair and R W Sloan subretiuently up the canyorv road and witness heard Gren nan fak Sloan to try and get the keys an L Utah commission room where The ballot boxes were kept for 11m Sloan said he would see him on the following day about I oclock and fix Jt u1 for him Was anything said about the providing pro-viding of tickets asked Attorney Hiles HilesGrennan Grennan Bald he had the tickets all ready printed for sh rif In answer to Attorney P i TWH llams the witness said this happened about 230 on Sunday afternoon November No-vember 1L Greiman had told witness before this that Lannan and several toted Irish Republicans wanted I to elect Tom Lewis a sheriff aught augh-t t i air Williams TFbat Lannon was it Pat orWell Martin Well I dont know lie had been talking to Martin I Was there any promise to give you nny of the money W lI I want in it I I wanted t stuff em I wouldnt g with Gren lan into the 5ot > Laughter > Witness further said that Sloan first came out of the house in the Canyon ra and Blair came up to them rat r Crennan had told Sloan that he wanted to see George Blatr about get tins into the Utah commission rm where the ballot bees were but he didnt then say what he wanted beyond be-yond that I was when Blair a with them that Sloan said he would ee Grennan m the morrow and Blair remarked Thats all right Attorney Williams then riddled OBrien with auestlons as to his past history He came here he said ahead of the Bonficld defectives had since run B saloon and followed various othajoccupations Prior to coming to EalHPrce be was a Chicago detective withf PInkevtor And didnt Pinkerton discharge you youTTell Wen be said I couldnt draw any snore salary so I quit Laughter You are under ludlctment for for serv UYes jn this court now arent you What are you doing now for n 1lv < ingWell Well I do a little detective work eoltectiug and u ie a pick and shovel i I get a job of that sor What do lou know about these Irish Republicans putting up money to stuff the ballot boxes SaysJSrne Innnnna Were at the Head Only what Grennan told me He told me that Martin Lannan was at the haad of It He said the Lannans Where is Grennan now 4Where1 Back east E presume Tie Is in New York I 1r could to find him I guess if I wanted toAre you assisting in concealing bis her but No sir I a not Who paid you for what work you did at the election Not a oul The Democrats didnt even pay me for what I did for them Laughter Mr Williams Ungrateful fellows l laughter Qre Jaughtr wer to other questions OBrJja informed Harvey tHardys e n aed arey fardys I friends of Gtennans enterprise pro j i i Ii c f t ably about half an hour after Gren nan first spoke to him on the subject How much did you ask Harvey lardys friends to give you for the In ormaiion 1 They never gave me a dollar How much did you ask Not a cent That was your motive in going up there to Canyon road with Grennan and having that talk with him about his matter and then going and telling It to these other parties I will tell you what my motive was I believed that Harvey Hardy was elected fairly and squarely and I didnt believe It was right of the Lannans or any other parties to go and try to defeat hIs election You and your conscience were at war Laughter squareness No it was a matter of fairness and You are a stickler for fairness and quareness arent arent you Well I havent done anything very wrong that I know of Has not Charlie Crane the chairman chair-man of the Republican committee agreed to pay you for coming here He has agreed to nothing Havent you asked hIm for cay continued Mr Williams No sir I have not answered OBrien after some hesitation The witness admitted presently that he had received 550 from a Mr McMahon Mc-Mahon but he did not ask him where I came from or whose it was Did McMahon say where It came from oiioy Prom the Rcim1 > lcivn Committee Com-mittee 41 knew where it came from promptly responded the witness from the Republican committee It was for working on this case and giving some information I submitted my report to MDMnhon and he submitted it to the Republican committee What did you do Detective work I investigated every theory submitted to me Laughter II Were you Investigating a theory when you went with Grennan up the Canyon road No it was since that time I was employed man I was retained after Christ inasDid Did you ascertain that any ballot boxes had been stuffed 7 I did you Who know stuffed them Lets have It if I dont know who stuffed them What ballot box was stuffed 7 Poll 2 In the Third precinct i When and where 1 couldnt telL Where a it stuffed 7 I never saw it stuffed Who gave you the Information 7 Well the information I found was this I learned that Mr E E Rich on the Sbh day of member ap i preached Hank Barnes in the rear i part of Bogles saloon and told him I he was requested to see him and find i out if Barnes would allow him to electWho handle this box to stuff it so a to Who beard it Interrupted Mr Williams I I heard it but I was not present at the conversation Laughter II got the information from Wm Dykes who heard some oE i the witness wit-ness said in answer ta another ans ttha r onTVno Who heard Mr Rich make that i statement zttement w Ive heard It several times After I being bard pressed for several minutes I min-utes OBrien said he had heard it was one Perry Hansen who overheard that I conversation IDykes told him so but he couldnt say where DyKes obtained his information be didnt ask him What did 2 > Ir Barnes say in reply to Richs proposition Well the way I got it is tat Barnes said he was not a man of that kind and would not engage In any such business Where were the boxes stuffed thenAt By At the whom Utah Commission building I I wasnt there Plying the witness with other questions ques-tions in this direction Attorney WI1 I hams gxft OBrien tangled up When he II eventually emerged from the mental fog he answeredI dont remember I whether I was informed who did I or I not lAfter another struggle to remember I re-member he BaidhI received the names of several persons < Who were they and Mr William I insisted on an answer I heard that Hank Barnes stuffed I them answered Joe and I heard that E E Rich stuffed them at his house but I dont remember who told me that The witness admitted that he had I spent lots of time chasing rumors Dowey RlcIitvrJs Dewey Blchards clerk to Territorial Secretary Richards whose offices are on the first floor of the Utah commls zion building answering Attorney THuds said he did not know the man Grennan Some time after the election elec-tion it was about midnight he BaG Ba-G J Gordon of Ogden at the commls lon building oGrdon said he had come there to take home Mr Blair one of the clerk of the Utah commIs sion and went upstairs to find him He had heard people going upstairs there while working in his office at all hours of the night No question was asked in crosgex amination Joseph Hi HcTveaoH Joseph L Haywood in answer to Judge Miner testified that hewas one of the judges of poll 3 Third precinct at the last November election Messrs Reed and Newman being the other judges All the votes were correctly counted and tallied JnnxoB G Giles J T Stephenson was recalled and asked a few questions and then Jas J i Giles took the stand He was at polls 1 and 2 Third precinct as a looker on and was present when the constitutional constitu-tional votes were counted Witnes checked each vote at is was counted at poll 1 and the judges return was quite correct There were 201 ballots cast for John Henry Smith and 203 for George E Emery At poll 2 11e also took close stock of the count and there the judges correctly reported the votes J H jmiths total was 242 and Emerys 2t7w w L Dykes Wm L Dykes gave similar test mony as to a honest count by the judges Witness saw Hank Barne and E E Rich talking together near Second South street a few days after the election He h r Mr Barnes say something about No such business and subsequently Barnes told him In 2 conscience of the conversion had Witness had previously heard that efforts ef-forts were being made to induce Barnes to stajt the ballot box fcfun Cnlenzzl Samuel Galleazzl said he saW two I of the ballot boxes in the refreshment tent of the Third precinct between 3 and oclock on the morning after the election Witness remarked it was ha nice place to have them The boxes were in charge of Sergeant Katz he having been alone there Continued on Page 3 I GTIN GASES ARE CLOSED j CLOSEl i I r I JI II II I I f Continued from page L I J If JIOlCC i I c I John L Koke a Ttilrfi precinct voter i was at polls 2 and 3 on election day JHia memorandums of the count agreed I exactly with the judges returns > O 1 r > 11 Jjannan DenIeR i P H Xiaunan manager oC the Salt I Le Tribune said he knew no such person a Joseph ot John Grennan Witness had a brother named Martin I Judge Powers then aidt ha5 been testified to I substance that the Irish 1 Republicans of this city and the I names of the Lannans were mentioned men-tioned Patrick and Martin had either raised a fund or were Trilling fc > raise 5500 for the purpose of paying ai nam 1 j > amea Grennan for stuffing the ballot I ibos of the Second precinct In favor I of Thomas LewIs for sheriff and against Harvey Hardy IB there any I iruth In It There Is not answered Mr Ian oan most emphatically And you have never heard of any ouch proposition No I have not was the eqvIIy positive reply Attorney Hiles Nobody claims i I But the statement wag made put asked in Judge Powers Then counsel I ro you Icrnw the reputation of Joe OI fo e Jn this community for truth encl eratY7 We yes I think that Is well established tablished I What Is it good or bad 7 > Oh bad deridedly Commiaslnncr Tatloclc Commissioner E W Tatlock called by Atorney Hiles stated that at the time the writs of prohibition were served the commissioners had gone into the ballot box of poll 2 and had either opened or were about to open that of poll 3 The result showed a difference of about 100 votes between the tally sheets aid the ballots ten in ahe box making a change of 49 orEO or-EO 4joes giving the Democratc 4D or 50 mozrci and the Republicans that many Jess That would affect all the Democratic Demo-cratic candidates He saw the broken key In the lock of box No L When the subject of going into tho boxes was first broached he believed ome thing1 was said about discrepancies but he did not remember what I was suggested that contests had been v > r were about to be instituted and that therefore it was advisable for the commission to go Into the ballot boxes of the Third precinct He did not remember re-member whether or not any grounds were stated at that time for taking this etep Later however i was said that the ballots had been improperly I counted and that the tally sheets did not show the correct number of votes to mUjcn the candidates were entitled Efo you know asked Attorney ZHILas how those boxes were kept 5n ih tjme between their reception by recelton the amlsslon and the inception of these election contests As I understand It they were deposited de-posited In the room across the hal from the working room of the commission com-mission a room which had but one door and which was always kept locked Witness referred to the boxes I generally and not as to any particular precinct Quite a number of ballot boxes were also In the commissions working room Commissioner Sherman also testified os to the count by the commission and some other matters connected with this undertaking Chairman iotcKoif Chairman Letcher was recalled in the afternoon and In reply to Judge iDles said he remembered when 3fr Xlich returned the boxes for the first poll Mr Barnes those of the second and Mr Red those of the third Witness Wit-ness thought Rich returned the keys for both boxes from the first poll Was there any portion of the key broken off In the lock of the constitutional constitu-tional box from poll iT I did not notice anything then but I but when ure came to make the recount it was observed that there was something I some-thing In the lock which appeared to I be part of a broken key That was on I Nov 1 01 i Did you make any inquiry as to how i hat ccurrefl I I dont remerober making any but I i recalled the statement made to me by Mr Rich on Nov 9 relative to a broken key boxe II flY did you identify the different boxeTViien W len they weie handed in they were labelled How long after Rich returned his boxes did volt label them 7 In Right si the time they were brought Have you any doubt that the broken key was in the box of poll 17 01 believe that It is but I may have labelled one constitutional and one county and got them mixed Was there any access to the room in which they were kept except by fag door Thtire was l window I Hot high from the ground 1 About eighteen feet I could be reached by a ladder I might How often were you In the room from the time they were put there until Dee IS Maybe two or three times You were aware that that room of might trouble be reached without a great deal Mr Sherman Intimated that extra care should be taken as there were umors around about irregularities in the elpotions 4 What Induced you to so into tho ballot boxes The discrepancies In the returns Did any cr e ever intimate to you that If you went Into the boxes you would find a different result to what appeared m the returns I heard general tlk but nothing ppecific We went into the boxes from the Third precinct on a request from H A Smith one of the candidates andfrm H J Dinniny calling atten ton e fact that there were rumors ihat ihe returns had not been made up correctly and suggesting a recount to arrive at a correct result When you made the recount of the second poll why did you not at the lame time recount the first poll We discovered the broken key in the box from poll 1 and could not open it Were these boves vet ftept in the meetingroom at the commission They were only there when we took them out to get the book out of them and when we counted the votes I Hov many ballots were there in poll pollThere were 150 straight Republican and 37 scratched Republican ballots 26C straight Democratic and 20 scratched Democratic tickets 21 straight Populist and 3 scratched Populist Pop-ulist tickets Who slept In the building while tho Coxes were there toxes n l Page Judge Norrell the Janitor and myself Was your brother there No not at that time Did you ever open the box ot poll iNo No we didnt reach It I Were there any pencil marks on the I box from poll 2 to indicate what ii I aT aTel there were pencil mar r d Williams ieamln by Ifr WiHam I J aaid a piece of paper w paste oVer the keyhole of each boa r O I i i L < J > > < I and not removed until the boxes were I opened for the recount George L IVyc George L Nye recalled said he was a member of the board of canvassers appointed for the Third precinct by the Utah Commission He In conjunction con-junction with other members of the board canvassed the ballots In toe boxes In the constitutional box at poll 2 were found 262 straight Democratic Demo-cratic 151 straight Republican 20 scratched Democratic G7 scratched Republican Re-publican 24 Populist 3 second precinct 1 frt precinct and four general dee tion ballots making a total of 502 The witness said there was a difference differ-ence In the color and texture in some of the Democratic ballots there was also a difference in the print in the letter u In the word McCune on some of the Democratic ballots The Republican ballots were ail alike In l color texture and print TIe Defense Opens The petitioners rested and the defendant de-fendant called B W Sloan who said he worked in the campaign as a member mem-ber of the campaign ommitt eDo e-Do you know a man named Joe Grennan He came to the headquarters frequently quently What for 1 He was very anxious to get paid for certain alleged political work What kind of work I could only tell by Inference but that inference was that before the reg istration was closed he could add Democratic Dem-ocratic them names to the list and vote themWhat What did you do in reference to his offerTold Told him we had no use for such work and no money for any such purpose pur-pose PHi he come with Joe Oferien No he came alone but OBrien came also Did you have any conversation with Grennan after the election 7 Yes one Sunday up Canyon road he made a proposition intimating that something could be done to elect Mr Lewis He said the ballot boxes could be fixed I asked him how and he said I could be arranged with the aid of George Blair He asked me to mention men-tion I to Blair I said I would do nothing of the sort Blair and I were on good terms and if I made such a proposition I would never expect to speak to him again Did George Blair or OBrien hear any of that conversation 7 No they did not Blair Did you mention the talk to 01 told him what Grennan had said and Blair said The s of a b had better not make that proposition tome to-me meDid i Did you know Grennan before I saw him about town j Describe him what was he like 7 < He was tall probably six feet dark with a dark moustache sallow seedy looking all round probably of Irish nationality e How do you know he is Irish By his manner of speech and if I may use the expression by his general odor and bearing You left Salt Lake soon after the election on business Yes I went to San Francisco on Insurance business and was away about six weeks Do you know Joe OBrien T have known him for perhaps six months Are you acquainted with his general reputation for truth and veracity Yes What Is It Bad 4 Crossexamined by Judge IDles I Were you the only member of the committee Grennan approached 7 I dont know he may have gone to others Anyway the committee didnt want any work of that kind and I told him so He led you to understand from his manner and by inuendo that he wanted money for dOing corrupt election elec-tion work Yes Did it occur to you that Grennan anted you to get Blair to obtain access ac-cess for Grennan to the boxes while they were at the Utah Commission I did not occur to me until now you suggest I but your surmise seems a natural one You thought it right to tell Mr Letcher and Mr Blair about what Grennan had said to you Yes I thought It well to put them on their guard You are a business man a man of affairs and yet this talk with Gren nan did not suggest to you that Grennan wanted to use Blair to get at the ballot boxes I The election was over I was attending at-tending to my business affairs and had I lost interest in the election I didnt trouble to figure out Grennans I schemes a You told Blair and Letcher to be Ion I-on their guard 7 Yes I told them to be guarded thinking that Grennan might make some propositions to them Propositions are not catching Sometimes they are I have been caught by propositions You wer < afraid Blair might be tempted to do something wrong No I wasnt but I just mentioned the matter to him I considered it dangerous to talk or hold any communication com-munication with such a man a Gren nan Were you ever on any committee or which Grennan was a member No not that I am aware of By P L Williams When did you see Kir Blair last Yesterday Where il he now At nome sick in bed with inflam ation of the bowels Is lIe able to come out 7 No Judge Hues asked about the broken key which Mr Reed said he gave to Sloan Witness said he remembered Reed gIvIng him the key to look at but didnt know what became of It afterwards Some six weeks after the occurrence Reed asked witness to return re-turn the broken key but he didnt have it and didnt know what had become be-come of it As to OBriens Reimtntlon Chief of Police Pratt examined by Judge Powers testified that he knew Joe OBrien and his reputation for truth and veracity was bad Captain Donovan Deputy Marshals Cumm k Timmony and Cannon gave similar testimony S TUnrtin lnnnnni Martin Lannan examined by Judge Powers Do you know Joe OBrien 7 Yes Is there any truth In the testimony given by him to the effect that you and your brother Pat agreed with Grennan to give him 500 for stuffing the ballot boxes In favor of Lewis the candidate for sheriff u None whatever in fact I dont know Grennan and never had such a proposition made to me by any one Witness said he had contributed money for Lewisto contest the election of Harvey Hardy Attorney I J Daly Attorney P J Daly examined by Judge Powers said he was presiding judge at poll 4 In the Second precinct Asked If there was any truth in the statement made by 13Brlen that the I Lannans would give 500 to have the ballot boxes stuffed In favor of Lewis witness said that OBrien had stated to him that he could get 5500 for stuff ing the ballot boxes and he offered to give witness half of it That was all he knew about It Do you know Grennan i Yes Did he ever make any proposition to you about stuffing the boxes JNo He expressed regret that I had returned re-turned the ballot boxes to the commission commis-sion so soon I Witness said heas presiding judge at poll 4 of the Second precinct took the ballot boxes to his office before sending them to the Utah commission While there they were opened in the presence of George W Moyer for the purpose of examining the mechanism of the box It was a foolish thing to do No ballots had either been taken out in his or care put Into the box while It was George W Moyer Geotge W Moyer said he saw the ballot boxes from the Second precinct at P J Dalys office In looking at the box witness expressed a desire to knew hoW the slot worked and how the ballots were got into it Day opened the lid and showed the mechanism mechan-ism and closed the box again No bal lots were put In or taken outGases out-Gases Closed This closed the case Judge Hiles We submit it without argument Attorney Williams We submit without with-out argument also except by referring your honor to the statute which says the writ of mandate is the counterpart of the writ of prohibition Judge Bartch to Judge Hiles Have you anything to say about the statute Judge Hiles I dont think I can enlighten en-lighten the court on the case There has been too much talk In these cases already but if the court desires I will say a few words Judge Bartch will hear you shortly and would like your construction of the supreme courts decision in this regard re-gard Mr Riles then said a few words arguing ar-guing that a writ of prohibition in these cases would lie and that It was a proper remedy for the petitioners lon P L Williams Argument Mr Williams in reply said The court upon due consideration consideraton and deliberation determined and adjudicated ad-judicated that the mandamus would not lie and denied the peremptory writ and rendered judgment for the respondents Why Because of the evidence before the court which are these returns it appearing to the court that there were discrepancies appearing appear-ing upon their face which in the eye of the law and according to the provisions pro-visions of the statute made I the duty of this returning board to go into the ballot boxes And now what They ask this court after that determination determina-tion to issue a writ of prohibition against the same board to say You shall not go into the ballot boxes Could inconsistency and irrationality proceed further Could an attitude more contradictory and inconsistent be invited than that Can the court accept ac-cept an Invitation of that kind t cross the track of its decision after due de presented liberation by to the it very next case that The argument is to turn this court into a returning board I has no appellate ap-pellate power over this returning board The only other part of the logic is that their having power to go into the ballot boxes did not depend upon the question whether or not they are honest votes in the ballot boxes But the statute says that the writ of prohibition pro-hibition arrests the proceeding of any tribunal corporation board or person whether exercising functions judicial or ministerial when such proceedings are without or in excess of the jurisdiction jurisdic-tion of any such tribunal corporation board or person Now the powers of such corporation or board or judicial tribunal are powers that are general their limitations are the same to the same class of cases In other words they are powers that have their boundaries boun-daries marked and circumscribed and laid down by law When determined by the court the argument here is that their power depends upon facts in the Individual case and that when you have decided to grant a writ of prohibition prohi-bition in one case measured by the mere extraneous facts in that case It does not become a precedent for any other case And still they are asking the court to decide in this case to grant a writ of prohibition not measured meas-ured by the legal boundaries of the power of this board at all to grant it because they say that there are illegal votes In this box is to say that the power to go Into the ballot box does npt depend upon a question judicially determined but to say it depends upon the question of a discrepancy appearing appear-ing upon the returns And again will 1 the court hold the parties before it are the parties affected by this proceeding i upon an application for a prohibition I not an inquiry like that of an election I elec-tion contest to determine the power I ton of the board upon it conclusion whether or not there have been illegal I votes cast I is simply a perversion of the law I I is an outrage and l confusion and a blending together of all remedies I I is asking this court to determine upon the rights of parties who are not before your honor and who are t be affected by this determination when you say that they shall or they shall not do this or that they shall proceed pro-ceed according to your honors individual indi-vidual judgment or how they shall proceed that they shall disregard some of the ballots and only count others it having been determined in this case to go into the ballot box I is I submit a substitution of the judgment judg-ment of this court for that kind of a ruling In the matter I is the purpose of our government Ato keep separate the different departments depart-ments The government is as rigid in confining to the courts their functions and denying to your houor the usurpation usurpa-tion of functions of this sort as a returning re-turning board as It Is positive in insisting in-sisting that the board shall not usurp the functions of the bench The very absurd consequence of this Is this the court has determined that they cannot issue certificates from the face of these returns because of dlscrep andes apparent upon their face and that it is their duty to go into the ballot bal-lot boxes But if i grants a prohibition 1 to keep them from going into the ballot i bal-lot boxes what Is the consequence 71 The people of the Third precinct have nobody to represent them in the convention I con-vention That must follow but it does seem to me absurd Let us determine de-termine this question and determine it promptly Judge P01er5 ClOKGK Judge Powers followed Mr Williams and closed for the defendants He said saidMay it please your honor I desire to direct your honors attention to the decision of the supreme court and in the few moments that I shall address the court will confine myself largely to that and the case that we have here Counsel are assuming here l state of facts that do not exist ily learned friend has said here that the information informa-tion tends to prove that the ballot box of the second poll of the Third precinct pre-cinct had been stuffed I submit to your honor that there is no proof here either properly or Improperly before your honor from which any interpretation interpre-tation could be legally drawn to that effect They have the testimony of thE judges that they made the count correctly cor-rectly They have the testimony of onlookers that they believe that it was done correctly And would your honor expect any other testimony from those I men Naturally a man is i not going to impeach his Own act He may believe be-lieve that what he has done is absolutely abso-lutely correct and true and yet after all be mistaken Again there is no conclusive proof here that the box that was open was from the econd poll of the Third precinct The manner in which they were labeled leaves I open for n mistake In regard to the box They are all alike with regard to their outside appearance and they dont know for a certainty as to which box in fact it was But granting that they were filled with unlawful ballots that Is not a matter for the consideration of the court From the very inception of these cases the other side have proceeded upon the theory that in an application Cor a tIt of mandate ot upon an application ap-plication for a writ of prohibition the court may sit and hear all the suppositions sup-positions and rumors that maybe may-be circulated against anybody A mans character may be blackened I t o < > I < = i i 5 U I i forever upon an Investigation that Is not confined to any issues but is an inquisition an endeavor to search out a dragnet an examination of anything anY-thing and everything that can be said about anybody a dragging In of names that are in no way interested That theory has been present here from the inception of this contest That class of testimony they have produced pro-duced here before your honor when in fact legally the only testimony that can be properly received and properly considered by the court is testimony as to the power of the commission Mr Hiles That is not matter of fact that Is matter of law mater Judge Powers Yes matter of law If we had followed the rule of law we would have cTSposed of this casein case-In an hour They have introduced testimony tes-timony here that is not law or fact or anything else as unsubstantial as the stuff that dreams are made of And now they are asking your honor to say that a fraud has been committed and that therefore they are entitled to a writ of prohibition 1 am using my brothers argument now and I Sa granting that there have been frauds committed for the sake of argument assuming that every vote in that ballot bal-lot box was wrongfully put there yet the court could not consider that in determining COr termining this case In which the issue Is-sue is simply whether this board has the power to go Into these ballot boxes This case was determined when your honor determined the writ of mandate The court then said I was a case in which In order to determine the result re-sult they had the power to go Into the ballot boxes They would have your honor now say that although I have ruled that they have the power nevertheless never-theless you shall not go Into these ballot bal-lot bOdes From the face of these returns te turns they are unable to determine who are elected the consequence would be that nobody could receive certificates certifi-cates from the Third precinct To me It seems only necessary to read our statute and It is only necessary for the court to determine whether this board has proceeded in excess of its jurisdiction tion or is proceeding without its jurisdiction juris-diction The CourtI want to call counsels attention that s far cw the evidence in this case yet shoAvs can the court determine as to whether they had the right to canvass all the votes in respect res-pect to the office of the constitutional delegates I hold that they have that I right Judge Powers That ig as I understand I under-stand i your honor And that is In conformity with the ruling of the supreme su-preme court And the supreme court in its decision as I read the other night In passing upon this saysand my brother RIles seeks to get around I by sayIng that Judges Merritt and King simply agreed with the judgment of the court and consequently not in the reasoning The court there said There Is much In thc record in this case and In the kindred case fr rio hibition which was heard with it in this court t indicate corrupt and criminal practices intended to affect the election occurring between the election and the canvass by the defendants de-fendants In fact in the urohibitirn case the court uxprcssly found there had been corrupt and criminal forgeries forger-ies and i is nut denied that puch uid exist upon the tilly sheet and returns and while in my view the evidence could have no proper mace in either of these cases Inasmuch as the canvassing canvas-sing board had no power to hear evidence evi-dence in regard to It eta The CourtLet me ask you how do you reconcile that with the position in the same decision which states that ame they have the same powers as the county court where they had the right under the statute to cgIl in witnesses and examine them Tudge Powers One of the hardest duties imposed upon members of the bar your honor is to reconcile some of the opinions of the supreme court We have to take them and read them in the lights that we have and grope along as best we may for they tell us what the law Is At the same time I apprehend that what is meant by the judge there in my reading of the opinion to be this That they must confine themselves to purely ministerial minis-terial duties That the evidence they may receive can only be with regard to the regularity of the papers or the ballot boxes that they have before them a to whether they have been properly kept as to whether they have been opened a to whether the judges signed their names to the papers or not but that they cannot go farther and determine the contest that they must confine themselves t < the arithmetical methods adding up the returns and In counting the votes that are in the ballot boxes Now I may ba wrong in my construction of it That is as near as I can answer the question ques-tion that your honor has submitted tome to-me I is in accordance with my view of the issue that is tendered upon the application for a writ of prohibition That the sole and simple question for the court to determine is whether the board or the court or Inferior tribunal is to act beyond or without Its jurisdiction jurisdic-tion The court could not say if It found that an inferior tribunal Thad jurisdiction over the case and there was evidence that the court proposed to decide the case Even though i might be made to appear that In the decision of it the court was proposing to hear testimony that no court upon the face of the earth would be entitled to hear for the sole power of this court In regard to the writ of prohibition prohibi-tion is to consider whether it is acting within Its powers The writ is not a writ of error I does not bring up for review proceedings that should be had below I does not bring to the consideration of the court the question as to whether a thing is being wrongfully wrong-fully done or rightfully done I brings to the consideration of the court the tle sole question as to whether they are acting within their power and when the court determines that we say the court Is to stop and refuse the writ of I prohibition So far as all this tale about fraud is concerned as we have heretofore argued it belongs to another other forum and the court cannot say that this commission will take these votes that are in that ballot box as being conclusive or take the tally sheets as being conclusive that is not considered here the court cannot inquire in-quire a to whether they would or would not do it the court cannot acct I them in that regard I would ask your honor as part of my argument to consider con-sider the brief which I have prepared a to the effect of the different branches of our government and that one of their essentials is that they are to act within their jurisdiction I shall submit a number of cases to show your honor that n writ of injunction will not lie and cannot be procured for the purpose of restraining the holding of an election which is claimed to be Illegal Il-legal I wish to fray may it please your honor in conclusion that we contest i this matter because we do not believe to have the question they are seeking before the adjudicated is properly I court There is a proper remedy Now i what Is the proper remedy laid dow cetificates are issued for a contest 1 the cetIfcates sued If my friends are right upon It I as they have been contending here the convention itself will have the power to determine the qualifications of its own members and a committee of the convention could determine after af-ter the certificates are issued whether they had been rightfully or wrongfully Issued which matter could be properly considered from the evidence which they seek to Introduce here that could be properly considered by a committee if they are right in their arguments that they have made here that that can be done by the convention Our legislature has the power There maybe may-be some question In regard to the constitutional con-stitutional convention I Is not Stnl din d-in the act that it shall have power to determine the qualifications of its own members I will say to your honor frankly that my view of the law does not bear out mY my friends on the other side on that point We insist that no case has been writ of prohibition I made here for a prohbl and we insIst that logically under the i decision of the supreme court and under I un-der the decision which we have applied I ap-plied as bearing on this action there pled a can be but one decision and that a denial of the writ of prohibition The supreme court has held that a writ will He in a proper case of prohibition wi le a These certificates show that this is a Thcs certfates proper case They have not gone beyond their Ce They have yond jurisdiction TeY not done 3 thing but what the statute says they may do under proper conditions con-ditions and proper circumstances That authority being so this court has no more thority to say that they shall not do it than they would have to go Into the than ballot boxes when there were no discrepancies dis-crepancies appearing upon the face of these returns Judge IDles said a very few words on HIes the petitioners and the court took it under advisement and will probably render his decision today |