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Show ' "the mandamus case. Arloaents aad Testimony In Progress Pro-gress Before Js it Suit. X COOH MIOHIM! 1011 KttlEL. Tlie JnJje. r r.lrct!u V tht nl rr Ur tht.-Jr."5 Tlie maBJaaw3procecliDg iu the election case cj-a: up befa'e Juli;e Zane today. O! Stone and CV. Ferguson were there far Col. Taje, the ' LtiMral' cauJKlate, aud Messre. Arthur Itrewn lad J. I... ItanliM reprerenlms the ISoardof CanxaiTs auJ J. II. jTnmel, Jr., tire Workiugnien'ii and Iec-l4e- cindhlalc The rf atlt Mught to 1: brjujht aSoui by the 'l.IberiI,' 1 to deprive Mr. Kuniel bftheoftire of ownty recorder, be-cause be-cause at Toll 1, First preeinct, the judges of election certified to rote for J. II. Kumii is4ead ofJiIin II. Humil, r. In the unie jpoSI the returns showed II. Itse iu-tead oi Henry IVte. The Ilaard of Cau-va'ers Cau-va'ers dccidnl to go to the ballot box to finu for whom the cte3 Wire actually cast, at' J then.if they were found fee Tot different er-on-, to 3 certify. It is this idling to the ballot box that the '-laterals' are making such a throng fight again-t. When court opened. loda Mr. Itrown aked leave, on behalf it J. II. Itumcl, Jr., to iuttrvene In the cae, as he was an Inlere-ted lrty. He ouered the fallowing alll iavit. In the I)i-trirt Court of the Thin! Judicial District, Utah ferritin County of Salt Itaki: Henry 1'ace, plaintiff, i-. I.lijah rlls, J. V. Judd, Hugh Andersou, V. W. lliter, and Klias Smith, de- fendanU. Tjjihitukn Utah, County of Salt Lake. John II. Rtimel, Jr., being duly t orn, depo-ea aud say: Thatat the cocnty iltitlon. held on the lh da of Augu-t, ISl, fcr tlie election of cjuutj officers of the County of Silt Lake, Territory o' Utah, held In iMiance of liw. he was a canuilate for and was vottd for, for the office of rrcordrr of Salt Lake Couu(y. That he was a enn-dtlate enn-dtlate upo: i o tickets one entitled the l'eopl fa Ticket, al-o another called the Independent Working-men Working-men tkkit. lha there ma no other ltumel,orier-ou b that name, ruunlng lor that oftice on that day,or as a candidate for that ofilce, tillur on that day or at auy other time. That there was no other ersoii b tlie name of Uumel eliglltle. That by the returns m-tJe from the juJges of the prectiicts of the election in said cojoty. it ap.iear' that there was a majority of votei i-at for this deponent, an 1 tliat tlii-deponent tlii-deponent was lawfully ihcted to -aid office of county recoruen lt that, :n some of the n turns the names f the various candldate-ere candldate-ere aMireviateil. That in -o,ii;o! the rtturii' it .ipjitars that Henri iagc received anumlnrof lallots. an J that II. Tage received a number of ballots. That in the first -mil of the flr-t precinct. Salt Lake City, it apiwarv that J. H. Uumel received votem and tliat II. I'.i.:e received votes. That the J. 11. Kunitl tlureiu men (toned, this ile)tiient is informed ind Itilieves true,wathis dejMiieut riiat it couhl lie noltody el-e. That 110 other Itumel was can Iidatc fr iilllo; no other rtuDR-1 was ellgiWr for oitlce. Tuatthi'tdepsueutreceivedalarge number of ot-! through jut the other .recintUofthecHiiity. which -liowed that he was entitle 1 1 tin entire v Ac thus ca-t in the tir-t pel: of the fin-t reclnct. Defonent further as that. If counted literally as couuiued iu the returns, thetaid ballois cat for II. I'age coull not be ccuntel for Heur I'age, any more tnan the (allots ra.t for J. H. ttjniel cou'd 'e countej for tals deoon-ut; but it rouuted t3cordini to the intend-ne.it, intend-ne.it, uuJer the earaJm-taniNH t the case, tlie ballot- for J. 11. Rumel raua lie coanled for this depin tin, aud that the rakl lnten Jment was aeliknowu to tlie said l!ird of Can va-er-, anl ilwas well knon n to thesaid Hoard of Cana-rs tliat all the facts ttated in this affidavit Wfn. true. Dffendant further says that ho is informed, and on liiforanllon piiJ i lief alleged to be trwe-, lliat this action has teen cimmen'vd agrtin-t the Kiid II ar 1 of Cauvaers for the purpo-e of iTsctliigtheek: tion of tin Jponcut; and the said depou atit has an Iu'ere-t in thi action in this, tliat he is a candidate for fetid ofilce, anl is the ierson elected thereto, aud is therefore cntltksl to Nuld oflice. Thl deponent therefore prays that ho miy have leave to file an answer herein, setting forth his defcusa. Cl. Ferguson, on Uhtlf ef the i "Liberals," oUettsd lo the intervention, inter-vention, as the merits of Uieconle-t could not be determined in this pro ceediug. Tlie rpie-tiou here was to a-cirtain w hether the board of cm-vas-ere Mwiuld certify to the returns a tlicj app-ared on thdr face, or w hether they could go farther aud take evi fence in the cac. Col. Stone alsaoljected, claiming that this proceeding reached only lo the Itoard of Canvac.i3 on their dut. undir the law. nua di I not atreit Ir. Kuimr.s interest tlirectly. Judge Zine Wha' is the tict whii h Mr. Uumel wi-hes to bring before the court" Mr. ISm-iii That iieis Johu II. rtumel and John 11. Uumel Jr, there b-ing merely a llht difler-ence difler-ence in the description; andako the (act that he is elected Col. I'ac declares that heist-Iedcd. and Mr. Uumel desires to anwer that by a counter claim. Mr. Itawlius said that as the certificate cer-tificate was prima facte evidence of the right to the office, awl Mr. UumI was directly inteieted. he wanted it to be diow n tint it was a reparation of tk-tcts cat for him that w as tielug sought by the other side. Judge V. ine examined tlie a(ti la vit anJ said Mr. Itum-1 merely asks leave to defeni, aud fur that reason only I will almit him to intervene. Mr. Ilrown presented a demurrer on behalf of the Hoard of Canvas-mti Canvas-mti as follow t "Now come the Board of Canvassers Can-vassers of Utah Territory and demur to tlie alternative w rit of mandamus in this cause fur the reason-. 1. That the Kime does not set forth facts sifllcient to constitute a cause of action in mandamus. "J. That it appears by the face o' raid alternative writ that the lab- rs of the Kjki Itaard of Can va-ers In I not yet been completed, and no result re-sult declare-! as for Salt Lake County; Coun-ty; that until that result can be a--certained, and until tills board have acted, with regard to tb matters in controvery, this court has no juri-dlction juri-dlction to direct the board as to liow they shall act, or what they shall do; or to enjoin this board, either by mandamus or injunction from opening tlie ballot boxes aud declaring the result thereon." Mr. Ilrawn then read the writ of mandate, heretofore publi-heJ. He argued that it was -Improper fir a candidate to come iu and ask tlie court to direct tile canvawe-i. to count the ballots for him, lfore they hal arrlveJatany opinion of what action they would take. The purpose 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 ofilce r had refu-ed to kt lorm. In this ca-e Mr. Ilrown argued that the application for a writ of mandate was premiture. The canvass ind not yet been completed. com-pleted. It was within the di-cre ttau of thttlnanl ta say what they should do in canvassing tlie returns, ani the court could not iuterfeto, lit when the loard hod acted then the court cjuld reviow the procoeuings aud teg that tbp law trat complied ffl'li Tf) IVsrd of ranvwors are (hcjui'gtsof what isaa irregularity, anl If they err, the court can direct them to proceed otherwise; but un- til they do determiners nd actnpon litis matter it would tie an unwar-, unwar-, rantcl Interference with the election , ma hinery to direct Ibeir labors. Thi i man late Is to pre vent the open ing of the ballot box, and the ajerUlninentr the true result at tlie lulls, anl is to command tlie boird to iJHiea certlQcato without regard to the ballots cast. JulgeXine Ua you uaJcretand tlie writ to say that the board had canvassed the return, and that no discrepancy or irregularity apieared therein; I meau no discrepancy with rtgard to all the r .-turns before the boaru? Mr. Urown It docs not say tliat tlie return; have been vaQvased,but it siys there was m discrepancy in any one of the returns not In all the returns before 11) U board. Judge Zane I understand that the omjtlilnt was. In substance, that the votes tn this particular poll I, I"irt precinct, had betn can-va-sed. aud niirn-gularity appeared therein; that it appeared that vote were ca-t for J. It. UuaicI, Jr., J. II. Ituniel, and II. l'agc. It does not snow that there was no Irregularity Irregu-larity as comiored with the other poll-. To this view lioth sides assented. Col. Stone said that he proposed to call I liatnnaii m.-IIs to give t-vi-Jtnce that the Hoard of Canvasser Iciiited to Koltiind thenturns. Mr. U ojtii- We have no objection to taking evidence as to what was done. Judge Zinc Tills mVter must be confined to the questions that are tric ly itrojier in this irocvcJlng. Jir Ilrown then reaJ the answer of the Hoard of Canvas-ers as pub-IMied pub-IMied j t-steruay. llellieu maJfan irguiu-ut, clai uing that Col. i'age (tad 110 right to complain, for the Hoard of L'innr had not refused to count for iiim all the votes he had received. They wore ready aud anxious to do that. Hut I'age asked them not to count for Itumel all tlie ote cast for him. Tlie judges of election in the disputed polls lial certified that the election elec-tion wa conducted "according to the rules of the Utah Com-Jiissiou," Com-Jiissiou," not 'according to law." riity made no return uf the list required re-quired !i law. but had only sent in Miieahrtrartandone tally sheet, on which the names of Henry i'age aud J. II. Itumel aiared as candidates can-didates fur.Jre imier. The law also retuires the judges of election to return re-turn the ballot box to the county anva-eiitg board (though tlie Com urislon has aprolnled one board for the whole territory) In-te-aJ ol canqdying with the law, the Cm m .--toner ordered tlie pn-idlug judge to keep the ballot box, and to I ek the pill li-ts ln the ballot box, m-t'-adof furarding ittothecan-va-sing Inard. Under tlie "rules ol the Utah .Coinmlarsluu" the Judges onforiiini to 11 j law. Tuey vnt an alwtract which is not 1 ituoriic-d by law, Uit failed 'jo send the li-t provided for ty law. In the Fir-t recinct, iu i!l 1 from A to I., the votes fur rt-corJer wert ceitihcd to le for H ltazeaud J. II. Uumel, and at poll J, from M t '. Ut Hnry la-e anu John II. Hu'iH, Jr. This Mr itrown claian-1, was of iteif a sufficient suf-ficient di-t(.r pancy to justify the cinaw-rs in K'H"K to the lollot trixe- to ascertain the 'rulii. If tin votes for II. I'age were to lie count-J count-J I r Henry P5, because he u known to be a cauJidAte, for tlie ame rea-m the votes fjr J. II It m-ishouid bei junted fur John H. Kaniel, Jr. sir Hrown presented in extensive list of authorities iu -U14e I f his iopusiliun, and Iwl J mg that "Jr." wa uirrelv adeserip 1011 fnruruos of IJeutiticitkMi and was no part of the name of III: Individual. Judge Z1115 s-nij ! understOM the sltiilliin l be 111 - That tin ,-etllion for a writ of n'uilit -t r'rJ, that tt ate a--r ca-t for J ir-II. ir-II. Huniol, Jr.. J. II. ltum-1 aud Henry I'age f.tr rtccrJcr; that tht ir.-ump'l'in Is Ml ed t-3 the Jr. that there is auolh-r J. II. Uumel, that ta this Tti:I-nrr a Ids the tin-snuqajon tin-snuqajon that J II Iliiiitl reside-ill reside-ill the c tiKty ami is a qua! tied voter, anl thai the ballots -hmiM Itt cjUi-:ed as fur diller-en diller-en r 1 oi. Im t'i j a'senn-4 a'senn-4 proof of Ih sefr't. the Ju lue li w an impression tliat the presumptions utel nihcht lo overiimie by rc -mi4iotisn-liM; front thefiit that twtsa natternf iit!l notoriety that John 11. It im-1, Jr , was tin candidale for recorder; that all but Umeof forty one poll in the county voted 'tr him, wl'lio-il any Vole-for Vole-for .1. I!, llumel, and further that wh re one F rt ireclnci poll, eiii'araetng the letters A ') L, the voles were for J. II. Raiut-1, while at the other foil. .M to Z agreed wi'h thirtj seven othei i ills. a I rtturmil votes for Join II Hamei, Jr. On the potulasb whether this was Mich a di-c-vjaiic s to authoriz- tlie baard to ga l ebillot box, he would expnsj ni opinioa. Mr Uniwnsaidlichad the Judgi of election here, who wouki te-tlft that the omb-t'on of Jr.' after Mr Uuniei's name, was merely ai I o iiissl mi an I that the votes wire K-tually fur J. II. Uumel. Jr. Kitjs'i Sells was the fir-t witnes-wante.1 witnes-wante.1 Uit as lie was not present Judge Judd was exaaiined. Mr. ltron 11 What Uumel do the returns from thirty-eight precincts show was vo'ed for? This question was strenu-xi-ly o)i Jeeteii to oa different eroundp, by count I for the platntllf. A pro lingeJ aruii'ii'en-ned, ill which all the attorn s on the m-e t'joV jsart Juttge If birough, in the -Kiro o1 h's remarks, declared tlie issue of this whole proceeding to be: DM there aipear, iiu the face of the returns, such a discrepancy as cave to the baard. under the law, author-it author-it to resort to and count the ballots? The pIilntifT holds that such a discrepancy did not ixit, .and that tlie Imard htd not, therrfarc, the riht to ojx-n the liallot box and count the votes. The fact thatsome of tlie returns showed that J. 11 ItuiiHfl wi-vote-il for. while otnirs showed 'hat J II. Uumel Jr was a candllate, was not, the counsel for plslntitl held, a discrepancy. This aritumeiit was iu progress when we went to pre-s. |