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Show THE CONTEST CASE, JaUg. IMam Benders His Decision De-cision in tbo Hitter, FI5DLd FOB DEFEXDAYT. His Honor Briefly Bertem the Surrounding Circumstance;. This morning Judge Anderson delivered judgment In tho Ferguson-Allen school election case, which has occupied the court for some days past. His Honor, In the outset, expressed ex-pressed his regret that bo had not had time to prepare a written opinion opin-ion in this case, but explained that owing to the pressure of business in the courts one case following an other In such rapid succession It had been impossible for him to do so. By tho official count, ho said, the defendant, Allen, had a majority of fifteen votes. The piaintlil contested the election of the defendant, substantially sub-stantially upon tho first and fourth grounds provided by tho statute, his ground for contesting the first being the malconduct of the board of judges, or any number thereof, and the fourth on account of votei. It had been shown that In poll No. 3, Bingham precinct, thirteen Illegal votes were cast for the defendant de-fendant It was very evident to his Honor's mind that some of those persons,!! not all of them, wereprac-tlcini; wereprac-tlcini; a direct fraud. At leaat'seveti of the men, he thought, whose uames were on- the regirtraUaj ilsf came forward and testified that Wjjy. w ere not there on election diy; tha they lived away from the place and therefore were not legal voteis. But their names were still on the reg s-trailon s-trailon list somewhere, and some other ertons appeared and personated person-ated them, and voted. Then the balauce of the thirteen men whose names were on the registration list had not been sutn-moued sutn-moued to the court, to testify as witnesses, but tho evidence showed that they were not at this place on election day. Perhaps it was not shown so conclusively; but he thought it established the fact I hat they were not there that the persons per-sons who voted were not authorized to do so. Of course It was possible for several persons of the same name to be living In the voting precinct, and especially In a precinct such s Bingham, with a miulng popula. tlon whence people came and went. He thought the evidence snowed, however, that at least six of the thirteen votes were illegal, and bore a very strong suspicion if, Indeed, It did not establish the fact that at least one of the Judgts knew quite a considerable number of those thirteen thir-teen men whose names were registered, reg-istered, and that when those persons per-sons came up to vol j he knew they were not the same. Of course it might be that ho did not know they wcro not of the same Christian utid surname, but tbey were certainly not the persons of the same name whom he had previously known. Therefore, taking it all in all, added his Honor, I think the evidence shows that these thirteen votes w ere illegal, and should be deducted from the number that the defendant received, on the official count. Now some votes had been gained by error In counting; lie could not, just then, state how many, nordld he deem It necessary to examine them particularly ; but he seemed to remember oue for the plalntiU In liiufl Dale. Ills reason for his not thinking It necessary for him to go over these and take them out now was, that the election most turn upon whether or not tho rejected votes at South Cottonwood were to be counted for the plalutlfT. If they were, he thought It would go to decide de-cide the election of the plaintiff If tbey were not, then the defendant was entitled to retain his seat. He believed it was conceded that of tbo eighteen i er-oii at Murray before referred to, and claimed to be legal voters, two were not entitled to vote; Greenand Wollley. It teemed hardly to be contended that these men were Irgil voters. The question was whether votes could be coun'ed In favor of a candidate can-didate w hen the votes were not cast. Section 3731 of the Compiled Statutes Stat-utes says: MNo irregularity or Improper conduct la the proccedtors ui lb Judres, or any o them, is sneb malcondact as avoidi an efee Hon. unless the ira Iguant or improper en duct is such aa to procn e the peraoa wboie rubt to the ntace is contested to be declared elected when be had not received the high eil number of Ie;l voles." The next section runs thus! "When any election held for an oSee exercised in nd Xoracounty it contested on account of any rnslcondnct on the part ot the board of Judges ot any precinct eiec tl-n, oratiy member thereof, tneleU9a carnot be annulled and act aaile npoaany pionf thereof, nslea ih rejection or the viieofsnch precinct or pre in-u.woatd change the resmtas to anch otaec la lha rcmainlDj vote of the eoant,." Now was it malconduct of tho judges at Murray to refuse to receive re-ceive the votes of men whose names were not on the list? Was It their duty to receive them? Were they confined to the registration list, or mijbt they receive the votes of any po'soii who came upand showed that he was a legal voter, ollered to take the regulation oath, and tendered his ballot. Our law. continued Ills Honor, in regard to contested ele.tIons.wassubstautl-ally ele.tIons.wassubstautl-ally tbeeameas that in California, where it had been held that vot-s not cast cannotbe counted, an 1 they even siy that the claim that they should be Is preposterous. He quoted the language used by tho court In the case of Webster vs. Byrne (31th California, p. 273), as folio UK "The court below erred in eouaUng to contestant the anppoae-1 votes of Uonsalves. Larkinand Uaoa, nader the pretence that tbey would have voted ror bio had they been aUowrd to vote. In all contest of this chancier the question is which candidate received the hicnest number ef votes? The idea that the supposed votes of persons who did not vote, b Jt wb conld bave voted had Uiey uken the neceasarv legal e'eps to en UUe them to do so abonld oe couoted for the candidate fsr whom tbey would have voted, la slap y pieposterons." In Kentucky, also. In the case of Newcombo vr. Klrtley, the simar was held. In that case the Judges closed t lit. polls before tbtt titmvjand. some two or three- wbtrlnrtdtfi'tr tlf, vote testified that ltiy vdhrd liaV voted If the polls bad been open. 1 C wns claimed, therefore, that their otes should have been counted, because it was no fault of their that they did not vote. But the court ruled that only such votes should be counted as were actually cast. His Honor was aware that I n election elec-tion contests, In the House of Representatives, Rep-resentatives, in Congress, and under some other circumstances, a different differ-ent rule prevailed. Here It was shown as a general thing, that If a person entitled to vole was deprived of votlng.hIs vote should be counted, but legislative bodies had the right to determine for themselves who were the elected member. Rut to far as the courts were concerned, no authority had been cited to him which said that a vote could be counted which had not been cast. Various reasons were given why they should be: but probably there would bo no limit in these cases to Hip rule if ople could go outside the votes cast. Suppose for Instance, In-stance, a successful candidate had caused tho arrest of a number of meu who would presumably have voted for his opponent: Should their votes be countedT Suppose, again, that a legal voter was prevented by sickness from going to vote, by a high tide of wa-ter, wa-ter, or! a hundred and one! other causes, if sut-h votes were to be counted it would make elections very uncertain. Hence tho courts bad adopted the rale that the only safe way was to count the votes actually cast, but rejecting any that might iiave been- cast Illegally, or were ambiguous or uncertain. Mention had been made of a decision de-cision by Judge Zano in the case of Young vs. Williams, wherein, by some fraud on tbo part of the ludgea of ejection the votes were throwOj on the tablcydestrcredjomotput in the ballot box; battbat was a vote actually given bjl the voter, ten-derelP'b1 ten-derelP'b1 him, -swoepted by the JudgWor election, and not counted but destroyed. fi that tli Is Is not a decision in collet with Uieie cases taffbom ho( Judge Auderson) hstl 'referred. Other costs were quotedslaring the trjilj of Ferguson vs. Aires) besides Ubose of California) Cal-ifornia) r and dvojatticky, bat be had1 .. ait had), ,timo since, to look into them.; ..Judge Cooley laid Jtjlowra that votes could not be counted.that were. not. cast. That being UiecasehextJudge Anderson) thought tha delendsnt Was entitled to retain, bis seat, and would now suggesivin regard to the fiudlngs of fact, that tbey ba submitted, so fai as could, be- agree. ujwu. Mr. Urown We "tlull ask your Honor.bTsay that .those sixteen or seventeen.' men were legal and proper Voters, anil did all they could to cast ballots, tendering them to thej udges Of election. Judju,tAndersowtYes, I think you are entitled to that finding, Mr. Urowilnnd 'hatthey were legal voters tu,far,l apfeani here. Mr. Brown Of course the names were oif the list' 'that morning. There 'Jf no dispute about that. Judge Anderson 1 believe they were simply stricken oil by tue registration" officer, and then the only question Is, whether thejudges haeaiff-j"wer to receive votes uot on the tegistratum" Jisl. I do not lielievo -trcj lntveV I think the idea of thatst wis for the guidance of the judge?-. ' air. ilimyn-Jhere was no step left thatcuOld hive been taken that those. voUff ditV.U0S.take. Judgetiliuerson concurred in this expremluu of ujiluiou; yet tbeit names nbbcingbn tho registration lLst, be remarkftfj'the Judges vou'd not receive their vptes. nccordiug to the doctrine lard down in Uie eisea which had heretofore been decided de-cided on that question. The courts iould not go outside- of tile votes SOiildfln.d': how,rfmBiiylerotis wquJEBave voted for'ttlier'plirtyt If Iheyliad bad the chance to-du so. He might slate that this was a very strong case; it presented that question ques-tion in about, aa rtroug a light as could jiossibly In fouud. There was practically 'noUjUesiion whatever that thee) inert Were legal voter; bjt they "wvru DO thu list. (Sisak-ing (Sisak-ing to Judjb' Looftiorough) Inasmuch Inas-much as the' lieeiiion is on your side, you' bad UUtjr preiare the findings and submit them tj Mr. Brown. '''"' 1 Mr. Brown,' however, said he would prepare them. Judge Loolborough Very well, and I will pri-parc findings nlso. The matter thus ended, aud Judge Anderson proceeded with the ordinary ordin-ary busInessfcrMs'Court. |