Helena weekly herald. [volume] (Helena, Mont.) 1867-1900, 1874-01-22

had been elected in his stead, was sworn in
without question. This much under the head
Of private right; and whatever Of claim Mr.
Barnes had to the office rs private property,
he has lost it in equity. in fairness and in
law.
1t remains to be considered on what found
alton can his claims stand as matter of pub
lie duty to be by him discharged, and as to
this it may be said, that if by the law Of the
Territory lie has lost his office, he has in
effect, it not i'll form, resigned, no public du-
ties devolved upon him, and their assumption
10y him would amount to no more than their
assumption by any other private person an
ex-member of the Council His alleged cleo
ton occurred in ~, since which time new
issues have come before the people, and it
would be i violent presumption to suppose
that he SO fairly reflected the popular will as
person elected by the same constituency
one year thereafter, 40 that for that reason
there is no commanding public reason why
the Council should give life to an abandoned
claim for the purpose Of ousting person
elected and admitted rs q member of the
Council.
Public considerations here as elsewhere
enter into the question, and dictated the pas
sage of the foregoing statute. constituency
ought not to go without representation, and
if the theory upon which Mr.. Barnes claims
this scat be true, then is it in the power Of a
Councilman I" refuse to appear in his seat.
end unless the foregoing Interpretation of
our statute be correct, he can prevent any one
else from appearing and wholly stitlc the
voice of his constituents. He may or may
not as he chooses, appear on the last day of
the session, and draw his :aileage and per
diem. leaving his district without remedy, and
to prevent this in justice this act was passed.
But the Council by its most solemn act stands
committed against Mr.. Barnes. At the extra
ordinary session it. by admitting Mr. Fisher,
committed itself to the expiration of Mr..
Fishers term to December. 1873. He came
here, was admitted, joined in making laws,
and now the Council is asked to reverse that
former decision, to declare to the effect, if
not in words, that its former action was
wholly illegal.
But aside from all these considerations, the
theory that Mr.. Barnes was elected when he
claims to have been was wholly false. The
law could have provided, if such had been
the desire of the Legislative Assembly, that
when vacancy was filled by election, the
elected officer should only hold during the
original term for which the person resigning
was elected. This provision does sometimes
occur in statutes. but it as often occurs where
the Council CT other body is continuing
body. as this Council is, that the statute steps
in and says: "Wbcn person is elected bis
term shall begin on some ensuing day, and
that he shall hold for two years, or some
other period This is our expressed statute.
Why man was elected is not material; when
he was elected not important. But the statute
says he shall hold the office two years. This
is the view the Council took of the election
of Mr. Fisher. 1t is said that it makes no
difference why he was elected, or whose sue
cessor he is. He has been elected. The De-
cember when his term began was December,
1871, and his term by our statute expires in
December, 1873 This is the way that Mr. |
Barnes regarded it; this is the way that Mr.. |
Wells, the County Clerk of jefferson county, |
regarded it. This is the view of the Council
At its Extraordinary Session in 1873, and it
was the view of the people of ali political
parties in that Council District at the election
in 1873, and against the express words of the
statute; against so much concurrent interpre-
tations of it by everybody interested in it;
and it indicates some hardihood to assert q
different Interpretation, especially when it is
in exact defiance of former precedent and the
language of the law Sec. 35 of revised stat
utcs, PIP 467. would have read differently,
and it would have been expressly provided
that the term of a person instead of extend
ing two years, should terminate with the term
for which the person resigning was elected.
As fortifying the proposition that it cannot
be said except on a determination by lot
whose scat Mr. Barnes should contest, it
must be said that if his theory is a correct
one, whoever voted in 1873 for successorto
Mr.. Fisher cast q vote that was an absolute
ncllity. 1t is no more force here. 1t was of
no more force than so much blank paper.
The theory of our government is, that it is
government of the people. Is the property
of an individual in an Office of such special
and peculiar character, that through Nches or
otherwise, it may be used rs power to de-
feat the wishes of the people? Good con-
science. equity and justice would indicate
otherwise.
am clearly of the opinion that Mr.. Beattie
should retain his seat.
Respectfully submitted,
r. E. ARICk
Barber and Garrigan, from the same COM
mitiee, submitted the following majority re-
port:
Mn. PREslDENT:-YOur Special Committee,
to whom was referred the subject matter OF
the contested seat of the Hon. A. II. Beattie, ]
of the Council from the Sd Council I
District, would respectfully submit the fol-
lowing majority report:
That, we find that at the regular election {
held in the year A. D. 1879, John 2. Barnes F,
was duly elected to represent the said Coun-
Gil District for The term of two years, CON-
mencing on the first day OF December of !
that year; and; in the opinion Of the ma !
iori;y Of your committee the ssic Barnes IL j
entitled 70 lis seat in the Council AL Of s
which "a respectfully submitted. d
OWEN GARRIGAN.
o. n. BARBER. ir
The :eports were received and read, and , (,
referred 10 the Committee Of the Whols. and j
made the snet;al c,xipr fOr Mf,ndav rnnrri0c | :