Helena weekly herald. [volume] (Helena, Mont.) 1867-1900, 1874-01-22
BARNES VERSUS eEATTlE.
REPORT OF THE COMMITTEES on
TIuECONTESTED ELECTlON CASE.

In our TUESDAY ISSUE we gave Tic result
of the contested election case of Barnes rs
Beattie. the vote having stood, for the for
mer and for the latter thus securing the
seat 10 Col Beattie. Below we give the re-
inss Of the council relative to the contest
This. we believe, is the first time in the his
tory of Montana that II seat in the Legisa
ture has been contested:
Arick. Chairman of Special Committee, to
whom was referred the matter of the apPli-
cation of Hon. J. p. Barnes for scat in this
House. submitted the following minority
report thereon:
Mr.. President.
In the matter of the contest of j. +.
Barnes for the seat in the Council now Occu-
pied by A. H. Beattic. the Chairman of your
select committee, would beg leave to sIbmit
the following minority report:
Preliminary to any inquiry rs TO when tho
elections transpired, and when was the COM
mcnccment. and when the end of the term it
will be proper to inquire under what circum-
stances a claim should be permitted, if at all.
The claim of Mr.. Barnes must stand either
as a private right or as public duty. Con-
sidcring the claim as one of private right, it
may lie said first: 1t is a rule of law en-
forced BY courts and every department of
government, that private right must be
insisted upon promptly, or it will be lost by
achGs.
The extraordinary session of April and
Nav, 1873. called by the Governor, was not
attended by Mr.. Barnes, but by Mr.. Beat
ties predecessor The excuse of Mr. Barnes
that lie had no certificate then, may be an
swcred bv saying that hc has none now, or
no valid one issued by those who counted his
votes lie could not attend as councilman
10y proxy. lie gave out and represented to
the people of his district that Mr.. Fisher
was the councilman, and that time having
transpired, the people have elected Mr..
Fishers successor.
Not supposing it material, the people did
not indicate whether Mr.. Walker, MIR.
Beatte or myself was elected as the suc-'
Cessor of Mr. Fisher. aed the Council cannot
say which one Of the three is the successor OF
Mr. Fisher. The question is not settled
by saving this or that member had the fewest
votes. for the one the people intended to
he Mr. Fishers successor may have had the
fcwest OF tho most votes. Second. But the
statute intcrvcnes. Revised Statutes PIP 468-9,
Sec. IL" Every office shall become vacant
on the happening of any of the following
events: sixth: his neglect to take
the oath of office"
There was palpablc neglect by Mr. Barnes
during an entire session Of such importance
as to come within the definition Of extraor-
dinarv.' specially convened by the volition
Of the Governor. Whenever. before the ex-
pira,ion Of tho term Of office. such neglect
,ranspircs, it operates per 1" to create
vacancy.
ANY other Interpretation of the statute
would present the absurdity of not creating
a vacancy in tho office by neglect until it
had actually occurred by Limitation OF law,
an absurditv no one would desire to face or
father.
1t seems clear then that there has been an
abaneonmcnt by MIR. Barnes of any position
which his claim indicates he once had, and
that, as 4 private right, and as public duty,
as well on the facts as claimed by him,
he does not now hold the Office he claims ii
il were true that he was once properly
tected by permitting this claim to be set upat
this late day, and if the claim were allowed,
the person 10 vacate a seat from the Sd Dis
trict should be determined by lot-a proceed
ing unquestionably unfair, but which has,
however. attributes Of fairness wls'ri. tho
proposition to arbitrarily select Air. .'eattle
as the sacrifice, does not possess.
Sd. AS for,ifying the proposition that an
abandonment of public duty BY absence IS
held in law to amount to resignation, or
operates TO create vacancy. it may be said
that in all the departments Of the Govern
ment the rule is enforced If such absence 10
without leave Further, it may be said that
, ne precedeRts in tits Territory for such sc-
1. ON are nct rare.
4,h. Ne less than -four tiu1es Ia the history |
# the Legiss..ye Assembly of Montana
have members held their seals without |
question upon jns. such tenures sf office a., ,
according tc My. Barnes statement. Mr.. |
Beattie nov holds ais n thc Eouse at the
nresent srs.iol, the absence Of MI. Delaney