Show THE CITY COUNCIL CONTENT the follows following in was filed with secretary sells february february SAM SALT LAKE city utah feb 18 13 son ron elijah sells seim secretary utah territory sir having been informed by the chair chairman an of if the utah commission that you have been designated to canvass the returns of the late municipal election I 1 have the honor to apply to you von for certificates of election for the tol following lowing persons to the offices named As councilmen Coun oilmen from the third municipal ward ell eli A folland frank H H hyde de C I 1 oscar H hardy As TU justice stice of the peace third munt muni ward ward E pack jr As councilmen Coun oilmen fourth municipal ward richard W young william J tuddenham john fewson smith or As justice of the peace fourth municipal ward george D i payer this application is based upon the fact that the persons dersons named received a majority or of the votes cast for the offices referred to in their respective municipal wards and is justified iusti fied we contend by the provisions of the territorial rit orial act of entitled an act proal providing ding for the incorporation of ittes cities 11 I 1 make this application in behalf behalf of myself and the gentlemen above named barned lu in the event of your refusal to issue of election as requested I 1 would respectfully ask you to furnish us with a certificate of the number of votes cast for the offices named in the third and fourth municipal wards with the names of the persons voted for ve very respectfully ali CHARD W the secretary did not furnish the certificates asked for as they had bad been issued to the liberal candidates the following was filed in the third district court friday afternoon february in the third district court of the territory of utah uh richard W young john fewson smith and william J tuddenham being first duly sworn on their oaths do do aay ay that they are and at all the times time 8 hereafter named have been citizens of the united states that salt lake city is the name of a municipal corporation existing under the laws of utah territory and that it is a city of the first class it having an inhabitancy of over people at and andi before the time of the election herein mentioned that for me last one and a half years they have been and nore now are actual bons bona we fide residents of the fourth municipal ward I 1 in said city of salt lake salt it lake county utah territory T that 1 hat each of said aff lants has been during the period last aforesaid and is now over the age of cof twenty one ohe years and they have been during said period and now tire are duly registered ind and qualified electors and fi free ee holders hol ders i in the municipal ward and city aforesaid that to wit on the day of february 1890 allege that there was a municipal election held in said city for the purpose of electing one mayor and fifteen councilmen counci imen and other officers of and for said city for the ensuing two years and that at the election amanis and each of them were candidates for the office of coun oilmen from said fourth municipal ward and then and there each of them reao received ived votes for the office effice of councilman in said city from said municipal ward further state that they received the highest number of votes of any person or persons from said municipal ward for the office of councilman and that no other persons or eandi candidates dates wore voted for said office except three whose names aro as follows to wit worden P noble louis john bohn and luoius lucius E hall and and that neither of said candidates last aforesaid received as great a number of votes as were cast in favor of aall affi ants and that said three last named persons obtained only votes that were cast in said municipal municipal uni cipal ward at said election for W api offices of council men further state that they are informed and believe that one elijah H sells has been named and authorized by the duly qualified officers of the law to issue to the persons obtaining the highest number of votes and the one authorized to hold said office a certificate of election or a certificate to that effect aud and that acting on said in information formatin and belief subsequent to said day of february 1890 applied to said elijah H sells as such officer and duly requested him to issue to them the said certificate showing that they were the parties so elected to the office aforesaid und and each of them but said be sells to then and there dAc declined lined and refused to tune lre said sad certificate to them or either of them 10 wherefore ask this honorable kowt ourt to issue an order to said elijah H R sells commanding him to issue to each of said a certificate of their election to the office of councilor of said efty from said municipal ward or in default to tb show cause weyhe did not issue said certificate before this honorable court at the hour of 10 am on the day of february 1890 RICHARD W YOUNG john fewson SMITH W J T subscribed and sworn to before me this day of february IWO 1 I M WADDELL notary public the following certificate of the vote in the third and fourth precincts cincis accompanies the affidavit number of votes received by the councilmen coun oilmen in the third and fourth municipal precincts of salt lake city as shown by the official canvass H pembroke dan wolstenholme F W ai armstrong 30 0 OH H HOY hardy frank H hyde ell eli A folland FOURTH W WP P noble louis cohn M L LB E hall K M W you young 40 william J am J fewson smith OFFICE I 1 be TsuRi ToRy or OF UTAH I 1 elijah sells secretary of the territory of uth utah ao do hereby certify that the above and foregoing is a full true and correct co copy y cast for coun conn oilmen at the last flast municipal election held on the tenth day of february 1890 in the third and fourth municipal oi pal precincts of salt lake city utah in in testimony whereof I 1 have hereunto subscribed my hand and affixed the great seal real of the territory pone done at salt lake city utah this lath day of february A D 1890 sear SEAL ELIJAH SELLS secretary of utah only the fourth precinct in ia acting in the contest as the result will also decide the third precinct upon the affidavit filed judge zang zane issued the following writ of mandate be it remembered that on this fourteenth day of february 1890 richard W young john dewsen smith sinith and william J tuddenham filed died their written affidavit in this court therein stating that they were and have been for over one year last past bona fide awe residents end and freeholders of the fourth municipal ward in salt lake city county of salt lake utah ter and therein lawfully registered electors and voters that on the day of february 1890 they were respectively ively candidates for the he office of councilmen in said city of salt lake in said county and territory and that they received and obtained a majority odthe of the votes cast capit in said municipal ward for said office of councilmen and that they are legally entitled to a seat and place in said municipal council for the ensuing two years Aff lants further state that they and each of them have applied to the defendant herein as canvasser of the votes in and for said cit yand required and request ed that said defendant issue to them and each of them a certificate of their election to the office of councilman of said city that notwithstanding the afo aforesaid roald facts and allegation in mid aid complaint the said defendant has refused and still dow dofa refuse to issue said certificate to their injury and damage now it ap appearing e a rin from III the affidavits affidavit a of said affa ts that t they have been duly elected to said office aforesaid and that the said defendant is withholding the said certificate to their injury and harm you yon elijah H seus sells canvasser of the votes for said city are hereby commanded to issue to said mad and each of them a certificate of their election or to show cause before this court why r you ou do not issue said at 10 0 clock a m W on the day of february 1890 at the court room in salt lake city C S judge As the certificates of election have already been issued to the liberal 11 candidates secretary sells will appear on monday monda to abdula show cause why they should not be issued to the peoples candidates THU THE SALT LAKE LAIK CONTEST feb 17 was the time set for col sells secretary of the territory and canvasser of the municipal election ejection returns to show cause why lie he had not issued certificates of election to the peoples candidates for justice of the P peace and councilmen in the fourth precinct as they had bad received a majority of the votes there this case cam involves a construction of section 1 article VI of the municipal incorporation law upon which there have already been two decisions one of these was the ogden case in 1889 when the question arose as to whether that municipality should hold its election under the new law referred to or its old charter and the court decided that the new law did not apply the other decision was in regard to salt lake city when the court ruled that the law was applicable to salt lake as to the officers to be elected that being the only question at issue now comes the question as to i whether hether w the officers designated in the new law shall be elected from wards as prescribed therein following is the section referred to there shall be elected in hi all of the cities of this territory the following officers in cities of the first class a mayor elective at large and three councilmen council men from each municipal 4 ward in cities of the second clat class a mayor elected at large and two coun calmen from each ward in cities of the third class a mayor and seven councilmen elected at large and in addition there shall be elected in all of said cities a recorder treasurer assessor and collector marshal and in cities of ur first and second olasa class a justice of the peace from each municipal ward and in cities of the third claw class two J justices of the peace to be elected at large provided that in the case of an incorporated city in which at the time of the passage of this act the members of the board of aldermen or council are elected from districts or wards the provision of this section shall not apply nor shall this act in any manner interfere with the existing qualifications of electors or officers or with the manner of selecting the officers ty to the el tation bor secretary sells bells to ad show cause his attorneys moura dickson and me bride entered a demurrer mr dickson made the first argument which was very brief he claimed that mandamus proceedings were not the proper course to pursue in ohp th ease case and insisted that the ogden decision precludes the chief justice from co considering n si the present case his position was that judge zane was bound by the ogden decision to an extent that he could not hear and termine the issues here mr dickson entered into no discussion of the merits of the case le grand young followed his position was that the remedy was proper as aa to the issuance of the certificate of election this would not determine the right to the title the certificate was prima fade evi evidence dence of the right to hold the office but its issue did not prevent the other party from making a contest the returns showed that certain persons in the precinct had bad received a majority of the votes cast in the precinct th co urt asked to direct the secretary as canvasser canvas sim to issue a certificate to those having the majority ma fonty and if there was wan any contest that could be made iu in the regular mauner manner mr young discussed the act providing for the incorporation of cities and showed how judge hendersons Men fien dersons opinion was inconsistent with itself und and was opposed to the more recent decision of the territorial supreme court P F 8 S richards took the po that the ogden decision was not authority in the present case as the issues were entirely diff different larent it did not cover the point at issue in the present proceedings and was only binding as to the question raised in the other case it was the evident intention of the statute to make a new set of officers and to allow their election from municipal wards it was a strained construction to say that the officers should be as provided by the new law but should not be elected in the way the new law jaw prescribes such a separation made the law contradictory while the other position made it harmonious the supreme court had decided that in the case of suit salt lake city the officers were changed and it should follow as a consequence that they should be elected from wards as the law jaw directed Jirec ted the proviso related only to cities where the board of aldermen or city council were already elected from wards and with the manner of selecting not noi electing officers by the city council judge mcbride me bride closed he claimed that the action of the secretary could not be interfered with as he acted in a judicial capacity judge zane inquired whether it was meant that the canvassing board in which capacity the secretary acted could not be directed by the court judge mcbride then corrected him himmell and stated that the secretary had a discretion in the matter judge zane again asked if the discretion was such that the court could not direct him to issue the certificate to the one ome which the court had ascertained was entitled to it judge mcbride again shifted his position and asserted that the canvasser was not a continuing officer but had discharged his duty when he imbued the certificate that his act was conclusive and he be could not be e required to change mr richards took up this proposition and pointed out that the can camers was not until he gave the certificate to the proper person if he issued aitto one who had no title he be did not perform his duty and could be required by the court to proceed according accord ing to the law judge zane announced that he would decide the case on tuesday february THE PROVO CONTEST while the utah commission decided that they would not consider the question as to whether or not hon john E booth was a poleg ambit in the matter of the contest over his election as mayor of provo they did agree on saturday afternoon to withhold the certificate of election until after the matter was ruled on by the courts whenever that may be the same position was taken with regard to the question as to whether the election should have been for aldermen or justices of the peace following is the commissions commission queer ruling salt lake city feb whereas A chi chairman sirman liberal committee provo city has filed a petition tt i ion requesting austing that no certin certificate cate of election be issued to james E booth who received a majority of the votes cast for mayor at the late municipal n cipal election held in and for said cit city on the ground that he is a polygamist a under the law although not charged with living in polygamy and also that certificates ol 01 of e election loc bo b withheld from two persons vo voted for at the said election for the office of aldermen and that certificates be given to certain other two persons who were voted for at said election for office of justices of the peace on the ground that said city is a city of the third class and that therefore no election for aldermen could legally be hold held the commission after due consideration in view of the fact that both questions are of importance and are open and mooted questions which should be judicially settled advises the secretary as canvassing officer to withhold all such certificates of election until the parties to be affected thereby have a full opportunity to apply to tho the courts tor for the proper use and judgment thereon Q G L GODFREY chairman 19 |