The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1883-11-23

Preceding the election the NEw NoifTH'
West discussed II some length the question
Of eligibility to the Constitutional Conyen-
ton - affected United States officers and
members Of the Legislature that provided
for the Convention. We believe the views
then ret forth are accepted ~ correct. There
has since been elected one member, Mr..
Medhurst, OF Silver Bow, who Is not citi.
zen Of the United States, n required ;
also one member, Mr.. Waterbury, Of
Deer Lodge, who had not been resident
and taxpayer Of this county for one year
next preceding his election. Both these gen.
tlemen, - well as Mr.. Hunt, of Choteau,
and Mr.. Msloney, of Dawson, we believe
clearly ineligible. IT TDFE <
The question 10 considered In the Herald
Of November 10th, As relative to Mr.. Med
hurst, - follows:
"Voting for q candidate who is ineligible
cannot possibly elect him, though he had all
the votes and there was no candidate besides.
All votes for such candidate are votes
thrown away, m much so as IL all had been
blank votes or the votes had never been cast.
In the case of Mr. Medhurst, of Silver Bow
WHO dCkuOWleuRes 1neUgt-
BILE, there ought to be no doubt whatever of
the status or the course Of proper action.
Mr.. Medhurst never was elected, was not
capable Of being elected, and of course he
had nothing whatever to resign. The issuing
OF q certificate to him was as unmeaning an
act as his resignation. His self-confessed in
eligibility ends the matter for good and all.
The one who received the next highest num-
Der Of votes, and was nc the same time eligi-
BILE, should have received the certificate Of
election"
We think the assertions and conclusions
Of the Herald incorrect. 1t Is true In some
States 1t Is provided by law that In case the
person receiving the highest number of votes
10 ineligible, then the person receiving the
next highest number of votes who is eligi-
BILE shall receive the certificate. But there
10 no such law In Montana. The statute
reads:
"And IL shall be the duty of the clerk of
said board Of county commissioners immedi-
ately to make up a certificate If election TO
each OF The persons hdUiRg the highest number
Of Uotes for members of the legislative
assembly, county and township officers re-
sPectively," etc.
II Is not the province of the canvassing
board to 60 behind the returns and consider
the eligibility Of candidate. In the case of
county offices, any persen desiring to contest
has his recourse provided for; and In the
case Of members Of the Constitutional Con-
vention, that body "when assembled, shall
be the sole and exclusive ridges of the
qualification and election of It's members"
We do not find any authority for the can
wasting board to pass upon the eligibility of
candidates voted for. Its duties are to "open
the returns and make abstracts of the votes"
and Of the clerk and commissioners to GER
tify those who have received the highest
number Of votes. We are informed that un-
der the common Law, which governs where
there is no statute to the contrary, If the per-
son receiving the highest number of votes is
ineligible, q new election may be ordered
but IN this case, the Convention, being the
sole and exclusive judge Of the qualification |
and election Of Its members, may, IL It de- |
termines the party receiving the highest |
number Of votes was ineligible, admit the
one receiving the next highest number of |
votes. This 1t can do by the authority |
vested In 1t, II 1t does not conflict with |
Territorial or United States statute, but no
such authority 10 vested In the canvassing |
boards or commissioners. Their duty ends |
with the issuance Of . certificate to the can.
didate receiving the highest number of votes. |
II the Convention excludes him Is inelipi- |
BILE, then 1t may admit candidate who has
received less number Of votes or refuse to |
admit any and hold the Office vacant. This
IS merely the opinion Of non expert in law,
but II looks so clear to US that we beg leave
% differ with our gifted and learned friend |
If the Herald.
u We presume In the cases at issue there |
will be no disposition to admit an ineligible
candidate or to exclude the eligible candi-
late having the next highest number of |
Iotes. 1t Is clearly the duty Of the county
'lerk TO issue certificates to those candidates
eceiving the highest number Of votes, and
where such are ineligible, the eligible
receiving the next highest vote can
'pply for certified copy of the abstract and
present that, with evidence of the Ineligible
~ Of the other, to the Constitutional Con-
'ention. As some Of those receiving the
highest number Of votes realize and freely
'ssert their ineligibility, written statement
rom them Of the fact TO the Convention
would obviate necessity for any evidence on
he subject. While 1t is not position to be
ought or fought for, and perhaps all who
ave been elected would very gladly relin-
uish their claims, IL is yet right that certif-
ates should be issued as the law provides
nd that those who are legally ineligible
hould not participate In the Convention.