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Show THE MANDAMUS CASE. iraaenls aad Testimony in Pro-irs Pro-irs Before Jb it ZmS. 1 COOK .SHOWIXJ rOK KUJ1EL. Tlie Jmljr r ElrcUoti .say the Vol iVrre frr Ilis.-Jr. Tiie mandaaiasiirocecJings in the election case cams up brfore JuJe Zane today. Cl. Stone and Co'. Kerguwn 'Cere there fur Col. lagef the 'WSwrar' cauildate, auJ Mers. Arthur Ilrovn and J. la. iawlins rewwenlius the ltoard nf Canva-trs and J. II. Itarutl, Jr., the Workingnien's and Pec-jJc's Pec-jJc's candidalc The rJilt Mughl to hi b.-dUjht aVKi. by tlie -Liberals'' Is to deprive Mr. Ituniel of the office of omnly recorder, because be-cause at Poll 1, First precinct, the judges of election certified Id votes for J. II. Humel lDtead orjchn 1I5 Ituniel, r. In the sime imll tlie returns showed H. Pase Instead of Uenrj- l'ze. The Hoard of Canvassers Can-vassers decided to go to the ballot box to dim for lioni the votes Were actually cast. atd th'en.if they were found ti tc Ibr different ierson-s to "3 certify. It is this tjolns to tlie ballot box that the "Liberal" are making such a strong right against When court opoucd totlav Mr. Broun asked leave, on behalf jfJ. II. Ilutncl, Jr., to iuttrvene in the case, as ho was an interested jarty. He olfered the fotlou Ing aftliavit: In the District Court of the Third Judicial District, L' tab Territarv. County of Salt Lake: Henry Page, plalutiir, v. Llyah Hells J. W. Judd, Hugh AnJerson, V. V. Uiter, and Kllas Smith, defendants. de-fendants. Tfrriturv ol-- Utah. County of Salt Lake. John II. rtiimel, Jr., being duly fcworu, Jfjo and says That at the cocuty election, held on the lh day of Augu-t, 1S93, fcr tlie election of c-auuty ottleers of the County of Salt Lake, Territory o: Utah, held in (lurstiance of law. he was a candidate for and was votd for, for the ofHceof recorder of Sail Itike County. That he was a ean-didaleupon ean-didaleupon two tickets one entitled the People's Ticket, al-o auother called tlie Iudeendent WorkinR-menV WorkinR-menV tlcktt Thst there was no other I (umel.or tersou b v that name, running Icr that ofllce on that day ,or as a candidate for that oillce, either on that day or at auy other time. That there was no other person by the name of Ituniel eligible. That by the returns made from the jujges of the precincts of the election In said county, it ap.tears that there was a majority of votes ftast for this deponent, ani that thi deponent was Ian fully elected to idoffl?e of county recorder; lut that, in same of tlie Miiriw n,,. iiames of the various candidates ere abbreviated. That inso.u:ol Uie rtturus it appears that Henry 'ace received a iiumlxr of ball4. an J tnat It. Page received a number of ballots. That in the first poll of the first precinct. Salt Lake City, it appears that J. H. Itumel received votes, and that H. I 'au receive.! votes. riiatthe J. II. Kunitl therein men tioned, this Uqonerit is informed ind believes true, was this dejionent. riiat it coukl be nobody el-e. Tlml no other Itumel was candidate fr ofllce; no other Rumel was eligible for oillce. ThattliUde3ueutreceivulalarge n'aiuber of otes throughout the other precinttsof the OHinty, whldi -Iioweil that he was entitle 1 1 the entire vote thus ca-t in the first pid! of tiie flrt precinct. Dejnneut furtlier savs that, if counted literally as contained ill the returns, the said balluW ea't for II. Page coulJ not be counted for Henry Page, any more than the (allots cost for J. II. itamel could 'e counted for tals ileiKin nt; but ii i-oiiute.l dvrdiug to the inteud-meat, inteud-meat, uuJer the ciraanctauiHM ot the case, the ballot for J. II. Itumel musi lie cv jntn! for this dep in -nl; aud that the said intenJment was well Known to thesakl IljardofCaii-va-ters and it wa? well known to thcsald Hoard ofCanvas-ers Hiatal: the facts stated in this aflUavit were true. IMeivdant furtlier says that ho Is informed, and on informition ud I) lief allireii to le tn'e, that this action has b-ot commenced ag-iln't the said Iljar.i of Cauvaers for the (Kirpo'e of SabctinjtheeN) tion of Ui is Opponent; and lhe saiddepou eut Irsan liitcreirt in this action in this, that he is a candidate for slid office, ani is the rm elected thereto, aud is therefore entitled to said office. This deponent, therefore prays that ho may have leave to rile an answer herein, setting forth his defense. Cel. Ferguson, on lihalf ef the "Liberals," oUccted lo the intervention, inter-vention, as tlie merits of thecontest could not be determined in this pro ceedlug. Tlie quest kin here was to ascertain n hether the board of cm-vassers cm-vassers should certify to the returns a they appmreil on their fitce. or whether they coukl go farllier aud take cvi fence in tbecae. Col. Stouealn objected, claiming tint this proceeding reached only to the Hoard of Canvaiscia on their duty under the law. and did not affect Mr. ltumcps intere-H directly. Judge Zine Wha' is tiie Iwt iiith Mr. Itumel wishes to bring before the court? Mr. Hrown That hels John II. Itumel and John II. Ituniel Jr, there bring merely a -II 'lit difference differ-ence in the description: anil also the tact that he ia elected t'ol. i'.s,e declares that he is elected, and Mr. Itumel desires to answer that by a counter claim. Mr. Itan-IiusKiMl that as the certificate cer-tificate was prima fuac evidence of the right to the office, and Mr. Iluni-1 was directly interested, he wanted it to be shown that it was a separation of ticKeLs cast for him that was tielng sought by the. other Judge Zine examined the aflUavit aflUa-vit anJ said Mr. Itunnl merely asks leave to defenl, aud for thlt reason only I will a hint him to intervene. Mr. Rrown presented a demurrer on behalf of tlie Hoard of Canvas--er. as follows: 'Now come the "Board of Canvassers Can-vassers of Utah Territory and demur to the alternative writ of niamlamus in this cause for the reasons -I. That the same does not set forth facts sufficient to constitute a cause of action in mandamus. . That It appears by tlie face or said alternative writ that the lab- r of thcsald Hoard of Canvassers tial not yet been completed, aud no result re-sult declared as for Salt Lake County; Coun-ty; that until that result can be a--certained, and until this board have acted, with regard to the matters in controversy, this court hi no jurisdiction juris-diction to direct the board as to how they shall act, or wliat they shall do; or to enjoin this board, either by mandamus or Injunction from opening tlie ballot boxes and declaring the result thereon." Mr. lirjwti then read the writ of mandate, heretofbrepublisheJ. He argued that it was -improper Itr a candidate to come iu and ask the court to direct the canvassers to count tlie ballots for him, lfore they bai arrived at any opinion of what action they would take. The jiurnose of a writ of mandate was to direct the officer to correct an action improperly taken, or to require re-quire the p-rformance of a duty which tlie officer had refu-ed toper-form. toper-form. In this ca-e Mr. Hrown argued that the application for a writ of mandate was premature. The canvass had not yet leen completed. com-pleted. It was within the di-cre-tion of the hoard to say what they should do In canvassing the returns, and the court could not interfere, but when the board had acted then the court cauld reviow tha proceedings and sec that thp law was oomplletl TVlili, ThrRrtlofrijT!tK9rssire the Jut'gesof what isaa Irregularity, an I if they Mr, the court can direct them to proceed otherwise; but until un-til they do determine and act upon tills matter. It would ue an uuwar-rantej uuwar-rantej Interference with the election majhlnery to direct tbelr labors. Thhmaudate Is to pre vent the open ins of the billot box, and the atoerUlnmentnf the true result at tlie lulls, anJ Is to command Uie boird tois'uea certificate without regard to lhe ballots cast. JuJgeXiue-Uj you uaJerstaud Uie writ lo say tliat the board had Canvassed the returns, and that no discrepancy or Irregularity apiieared thereiu; 1 mem no discrepancy with regard to all the returns before the boaru? Mr. Brown It does not say that the returns have been can vassed.but it says there was m discrepancy in anyone of the returns not In all the returns before Uie lxisr.1 Judge Zan I understand that the CMnpjalnt was, in substance, that the voles In Uils particular poll I. first precinct, had been can-va-sed. and nolrreularity appeared therein; that it appeared that votes were cast for J. II. BumeL Jr., J. II. ituniel, and II. Page. It does not sho that there was no Irregularity Irregu-larity as compared with the other poll-. To this view boUi sides assented. Col. Stone said that he proposed to call (. hairmau Sells to give cvi-Jence cvi-Jence that the Hoard of Cauvassen, decided to go lehiud the returns. Mr. Brown- WeliavenoobjecUon to taking evidence as to what was done. Judge Zine This ma'ler must be confined to lhe questions that are strlc ly projier In this proceeding. Mr Hrdwu then no! the answer of the Hoard of Canvassers as jiub-IMied jiub-IMied yesterday. He then inal-an argument, claiming that Col. Page had no right to eiHi)aln, for the Hoard of Canvassers had nut refused to count for hloi all the votes he had received. They were ready aud anxious to do that. Hut Page asked them uut to count for Itumel all the votes cast for him. The judges of election iu the disputed polls Iial certified that the election elec-tion was conducted "according to the rules of tlie L'lali Com-niseiou," Com-niseiou," not "according to law." They made no return cf Uie li-ts re-uired re-uired by law, but had only sent in one abstrart and one tally sheet, on which the names of Henry Page and J. II. Itumel ajqieared as candidates can-didates forjrecorder. The law also requires the judges of election to re-turu re-turu the ballot box to the county .-auva-sjng board (though the Com incision has appointed one board fur Uie KlKde Territory). InsteaJ ol conijjyiug with tlie lax, the Commissioner Com-missioner ordered Uie ptvsidiug judge to keei the ballot box, and to l-n-k the pill li-ts in the ballot box, in-teadof forwarding It to tliccan-va-iiig lioard. L'ndtrthe "rules of Uie Utah .CoiuiuImIuu" the Judges onformed to n law. Tney -eat an alvtract which is not I'lllioriied by Uw, but failed to seud the li-t provided for by Uw. In the First precinct, In !!! 1 from A to U the votes fur reoorJer were tvitilitsl to l-e fur H. Pajeand J. II. Itumel, and at loll i from M tt Z. for I Inrv Pane aim John 11. Itumel, Jr. This, Mr Hrown claimed, ash of it-elf a sufficient suf-ficient dii.repncy lo justify the eiiivasers iu going lo the ballot Inxes to a-rriatn the truth. If tin votes for II. Page were to becouut-ej becouut-ej f.ic Henry Page, because he wa-knowu wa-knowu to be a cauJidate, for Uie iimc rvasia the votes for J. II. Hi. inrl should be cjunled for John 11. Itamel, Jr. Mr. Hrown pn-ented an extensive list of authorities iu -uppift of lib iirojiosiliou, and IralJ ng that -'Jr." wa merely ade-crip ion for l"ir(r-es of lieutirlcatlon upI was no part of the name of th: individual. Judge Zine sU lie understood the sltutUoll lo be th s- That tin jetltion for a writ of n tu 1 it ?t for::.irntt!le vjtes Wtrcca-tfor Jno. it. liuniol, Jr J. II. Kumel aud Henry Page f.r recorder; that tht r.-imi:i.)ii is rai ed by the -Jr.' thlt there U .iuoUit J. II. Itumel; that Ij this li:!-mrr a Ids the prv-suuiUon prv-suuiUon that J II. Itimil resides iu the cHiiity and is a qui! -fled voter, an) that the ballots -houid b cjOi. ed as for different differ-ent jRr-on. In t'i. a'iseiirr if proof of lh.e f es, lhe ju le litn in imprison that the presumptions i-jtel might Ite overcouie by pre-su pre-su millions a ri-litg from the f ut thai ilasa matter f publi notoriety IhatJoliii Ii. It mi'-I, Jr., was tin candidate for recorder; thlt all liut thrteof forty-one polls in the county voted for him, wlthoat any vuti-s for .'. H. Humel; and further, tint win re one I'.rst precinct (sill, eiii'iraciiig the letters A L, the v4es were for J. II. ftamcl, while at the otiier (oil. .M to V. agreed with thirty seven othei pi!K ami rsturiHsl votes fur Join II. Kiiiul. Jr. On the iiointasti o-hether this was such a db-.x,ne t to autimriz? Uie luar.l to ga b billot bDx, he would express ui opinion. Mr. Hrown said he had the juilgi of election here, who would testify ilial the omission of '-Jr.'' after Mr Humrl ninie, mis merely at. omlssl in. an I that the votes were tetually for J. II. Itumel, Jr. Kiija'i Sells was the fir-t witness vante.1. tmt as lie was not present JiiifKe Judd was exaailtted. Mr. Hrown What Itumel do the returns from thirty-eight precinct show was vo'ed for? This quition was strenuiusly oh Jeeted to on iliff-reut grounds, by counsel for the plaintiff. A pro longed aruiini' eiwied, iu which ill the attorneys on tli-trae tli-trae tr,o art. Juuge Iiof birough, iu the ours 3 o' It's remarks, declared the i-ue uf this w hole proceeding to be: Did there aipear, iqnu the face of Uie return, such a dK-repaupy as irave to the board, uult-r the law, authority author-ity to resort lo and count theballots? Tlie plaintin holds that such a discrepancy dhl not txist, nd that Use lioani hid not, therefore, the tight to en the ballot box and count the voleo. The fact that some of tlie returns slioe.l that J. II. Itumel w.i voteil for. while otners vliowed that J. II. Ituniel Jr. was a candilate, was not, the counsel for piaiiillrl liekl, a dbrenry. This argument was iu progress when w e went to pre. |
