The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1882-12-01

the tn.tho'is If procedure la sncl cases.
The question has frequently been raised
whether or not county aud district canvass
ing boards could throw out rrturns-whe,h"'
their duties were ministerial or Judicial
The decisions are TO the effect that their
action 10 almost wholly ministerial; that II
the returns are presented In regular form
the board takes them, adds them up and GER
tines the result. The questions Of illegal
voting and fraudulent returns belong with
the Territorial courts, and the laws Of Mon.
tapa provide for the method by which cleo.
tions may be contested after the returns
have been made. We have not In mind N
instance Of contest Of this character In
Montana, the canvassing boards having nd.
United returns when they evidently showed
the expressed will Of electors even II The
returns were irregular In form, which they
frequently are, and their CANVASS has been
accepted without recourse 10 the courts
Ryen In Missouls county, at the recent cleo
ton, although 1t was believed large mum
Der of illegal votes were cast aud the defeat
ed candidates had Hon. J. e. Robinson re-
tanned aud present 1t the CANVASS, We under
stand no contest has been Instituted
because, although 1t was believed many lille
gal votes were cast In the railroad precincts
they merely increased majsrities without
changing results. In case . coptest 10 brought
for county Office and the matter comes BE-
fore the District Court, the action Of the can.
wasting board 10 ignored and the court goe,
back TO the election aud Investigates to thu
bottom. 1t appears now that no such con
tests will be made, save perhaps In CusteI
county where an illegal vote Of soldiers II
alleged, and IN GsIiatin county where
Reservation vote 10 alleged. The accepted
general law governing the action of canvass
Ing boards 10 set forth ss follows: "A can
wasting board has ne power to throw ouI
The returns Of votes which are genuine and
regular in form on the ground Of fraud IN
The election, and, If 1t does throw out such
returns, may be- compelled by mandsmus to
reasonable aud make correct CANVASS"
The contest of the election of Delegate IL
Congress 10 distinct from contest for coun
ty offices, except In 80 far as county contests
might throw out ballots including the vote
tor Delegate. We do not see that contest
for the Delegateship as an abstract matter
eau be brought to issue short Of the House Of
Representatives.
The Constitution OF the United States
provides, Art. /, sec. 5: Each House shall
pe the Judge Of the elections, returns, and
qualifications Of It's own members" This,
I not relic Of barbarism, 10 reserved ab.
solutsism tina: should have no place in the
Cpnstit ution, but It 10 there and takes the
question Of Congressional elections out Of
The hands of the courts and puts IL In the
hands Of the party that happens to constitute
he majority. Under this constitutional
provision the Revised Statutes Of the United
States is ~ follows:
SECTION 1O5. Whenever any person In
tends to contest an election Of any member
If the House Of Representatives OF the Uni
ed states, he shall, within twenty days
after the result of such election shall have
Deen determined by tn: officer or board 81
canvasssrs authorized by law TO determine
the same, give notice, In writing, to the mem
Der whose seat he designs 10 contest, Of bill
intention TO contest the same, aud, In such
notice, shall specify particularly the ground
upon which be relies In the contest.
SEC. 100. Any member upon whom the
notice mentioned In the preceding section
may be served shall, Within thirty days aftel
liz service thereof, answer such notice, nd
hitting or ienying the facts alleged therein
aud stating specifically any other ground.
upon which he rests the validity Of his cleo
ton; and shall serve copy Of bis answer
upon his contestant.
SEC. LOT. In all contested election easel
The time allowed for taking testimony shall
he ninety days. and the testimony shall be
taken in the following order: The contest
ant shall take testimony during the frst forty
days, the returned member during the sue
ceeding forty days, and the contestant may
take testimony In rebuttal only, during the
remaining ten days OF said period.
Sections los and 100 prescribe the proceed
ure for taking testimony aud provide 1t ma,
be taken at two or more places IT the same
ime.
There has been considerable said about
Marshal Botkin acting ~ = member Of the
board of canvassers In al election where be
was one of the candidates. We do not SEE
hat under the laws that will legally bal
him, or that the issuance Of . certificate 10
Mr.. Maginnis, under the laws, can be any bal
his contesting the election II he - deter.
mines. His duties TO count the returns ap
per to be wholly ministerial, not affecting In
any way his right to contest the election,
even II certificate Ii issued TO Mr.. Magin.
mis-. He has his recourse, aud his only re.
course, In the method specified above, and
we're we In his position We would not hest.
tate to sit ~ . canvasser, and IL the returna
are presented In due form count them and
then contest II We believed we had received
= majority of the legal votes cast. His &C
lion rs canvasser could not possibly vitiats
his claim.
Our opinion Of this floating, actually non.
resident vote Is we'll known. We do not
believe . soldier enlisted elsewhere has 4
right to vote In Montana, or that transient
railroad laborsr or other person, actually
holding and claiming residence elsewhere,
acquires even technical legal residence In
Montana, or has any right to vote u our
elections. This we hold - matter Of com.
mon senss and common right irrespective Of
any fine legal technicalitios. 4 citizen 10 Z
citizen anywhere In the Usited States. ID
mas residences somewhere Of which be can.
not and should not be deprived. 1t 10 his
intent that largely determines that residences,
So just IL this view that the California
courts decided that where citixsns lsft East
srn States and emigratsd TO California with
the intent to reside there, their residence was
held to date from the day they emigrated
from the State where they had resided. Nov
how many Of the railroad graders vhoss
vote swelled, II they did not make, Major
Maginnis's majority, came to Montana with
the intent Of making this their residences;
Where now 10 the bulk OF the crowd Of Utah
graders that voted In Deer Lodge? They have
gone, and Intended 10 return and reside In
TTtsh xwhon thav wnfaA soldIar has s,n