LITMIR.BIZ

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within twenty-five days of the election. All who attempted to register after the forty or twenty-five days were not entitled to vote, and these he did not register nor certify to.

      The county grand jury took up on December 20, 1907, the matter of the alleged conspiracy in relation to the division election and as the first phase the refusal of the three commissioners to perform a specific duty in the canvass of the returns, in pursuance of a conspiracy. It was a coincidence that Commissioner Herbert was a member of the grand jury and he was excused from participation in the inquiry on the first phase, but called for the second phase as regards the fraud in voting and registration. The plea for the refusal to canvass the vote was that this action was based on the advice of the Visalia attorney. The reason given for the non-holding of the called meeting of the commission for the canvassing of the returns was that it was not required to be held until six days after the receipt of the votes. That Monday was in fact the sixth day after the election and all returns had been received the day after the election.

      There was a circumstance in this connection. It may have been that this Monday called meeting of the commission was not held because not until night of that day was the town council of Hanford to award to F. S. Granger franchise for an interurban road between Hanford and Fresno. Perhaps it was desired to have this matter settled before taking action to set aside the election and calling for another so that the matter of the franchise grant could be used as an argument for winning over votes at the second election. As a matter of fact this interurban road failed to materialize because its bonds could never find sale.

      Confusion was worse confounded January 8, 1908, when there was a call out for the second election by the commission for the 14th but on which 8th day the grand jury returned indictments against Commissioners David M. De Long, Scott Blair and George Robinson for a felony under Section 41 of crimes against the elective franchise in the refusal and neglect to canvass the December election vote. The indictments were not expected so soon after the mandamus hearing at Sacramento the Monday before on the order to show cause before the district appellate court why they had not canvassed the vote. The petition was by John Cerini, an elector of the Liberty precinct, who had also petitioned in the Superior court of Fresno County to enjoin the holding of the January 14th election held up by order of Judge H. Z. Austin. The foreman of the grand jury was T. C. White and the indictments were returned by fifteen subscribing grand jurors out of nineteen.

      There was a reason for advancing the finding of the indictments. The electors of Laton had voted strongly against division, in fact their vote had been a deciding factor, the divisionists having their support in the out-of-town voters in the Laguna country. To change the possible vote at the 14th of January election the commission removed the polling place from Laton, where it had been for years, to the district school house seven miles from town. The purpose of this change could have been to reduce the Laton vote against division because of inability to attend at the polling place, and thus increase the vote for division in the southern and western part of the county in the district before offset by the town people. Undeterred by indictment, mandamus and injunction, but determined to carry out the program to void the result of the December election, the personnel of the precinct boards of election in the affected district had also been changed for the election on the 14th, a new set of officials was practically named and anti-divisionists declared that the precincts were placed in control of sympathizers with Kings and partisans of division. The time for forbearance and temporizing had passed and the contempt of the commissioners was met by the indictments. Meanwhile no canvass of the vote and no official declaration of the result.

      January 10th the appellate court issued its writ ordering the commissioners to canvass the result of the special election in December, the mandamus case having been referred to it for hearing and decision by the supreme court. The decision was an unanimous one and for the time killed the division movement. The pleaded refusal to canvass was on the ground that 309 voters registered within the forty days preceding the election were denied ballots by order of the county clerk.

      The superior court injunction case as regards the called for second election on the 14th was independent of the mandamus case. It was held in abeyance until after the attitude of the refractory trio -was further made manifest after receipt of the mandamus order. The injunction forbade making any preparation for this election. The commission had no paraphernalia for it save the sealed and bank-vaulted election papers of December and if the returns were canvassed and the result against division declared manifestly there would be no need for another election under the act. The county clerk refused to issue new papers for an election in January. The question of illegal votes was not a matter for the commissioners as it had always been contended and as it was held. Theirs was to canvass the vote and declare the result. And if any one desired to contest the election, how was he to institute that contest when no official declaration of the December vote had ever been made? Moreover, had it come to the question of that fraud, it would probably have been found where the initiative was and there would have been no likelihood of a contest by the divisionists.

      The mandamus decision was to order the refractory ones to do under the law the thing that they had been asked to do but which they stubbornly refused to do and for which they were indicted. Their defense was that they had acted as they did on the advice of a Visalia attorney. Lawyers will tell you that it is no defense in law that a client has acted on the bad or fool advice of a lawyer. The commissioners abided by the mandamus order and canvassed the December vote. They had been hoisted by their own petard. They had chosen to accept the sole and unsupported advice of this Visalian as against that of other lawyers and that of the county's law giver in the deputy district attorney in opposition to the Visalian but conformably with the court ruling in the mandamus case.

      But there was discovered another strong piece of evidence as showing intent. It was brought to the attention of the grand jury, and as report had it, was a strong determining factor resulting in the presentation of the indictments. It was in effect that after the day of the December election and after defeat of division was known from the unofficial returns, and before the day for the canvass at Coalinga, the commissioners under indictment afterward communicated by telephone with county division headquarters at Hanford and all or some attended a meeting of the division campaigners in that town. The communications that passed and the instructions from the meeting were in effect of the character of the acts done in the refusal to canvass the returns, and brought about the complications that actually arose.

      The four indictments against the three refractories and their ill advising Visalia attorney were stricken from the court files by a decision on January 23, 1908, by Judge J. A. Melvin of Alameda County, who had been called into the case and whose technical decision was that the substantial rights of the defendants had been violated in that G. P. Beveridge and William Forsyth as grand jurors had voted to find indictments when they had not been present at the grand jury meetings when testimony was given on the 20th and 21st of December and that what evidence they were in possession of was not legal but hearsay evidence, having been the stenographic report of the testimony given on the two days. Judge Melvin declared that he was loath to grant the motion on a technicality, but said that the people's rights would not be sacrificed by a granting of the motion for he instructed the district attorney to resubmit the case to another grand jury. The attention of the court was directed to the fact that even with the two grand jurors eliminated, there had still been a quorum of twelve to find the indictments. The answer was that the duties of a grand juror are not alone to vote but to hear and take the best evidence and to discuss it and not having heard all the testimony presented they were disqualified, biased or prejudiced.

      The two jurors had testified that they were not prejudiced. In behalf of Beveridge, it was admitted that he had contributed $200 to the Fresno anti-division campaign fund. Three interesting facts were brought out in a reading of the testimony given by Commissioner Guiberson before the grand jury and they were:

      (1) That it was understood at the meeting of the commissioners for the canvass of the votes that the Visalia attorney came with a prepared resolution to declare the election void and of no effect, with only the date line blank.

      (2) That Guiberson could not comprehend that this Visalian's advice could be right because he quoted no law and had he said that black was white the board would also so have declared in following any advice from him.

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