The semi-weekly miner. [volume] (Butte, Mont.) 1882-1886, 1885-04-25

"To regulate the election Of city
office 8, and to provide by ordinance
for the registration of voter at any
city election etc.
Under this last provision the City
Council undoubtedly has the power
to provide for the registration Of vo-
tiers, but nothing more 1t certainly
does 70. confer upon the Council the
right or power to PASS ordinances
fixing the qualification OF voters, nor
the authority to prohibit any one
who possesses the statutory qualitica-
tons from voting
Does not the provisions of Ofdi-
nance No. 81 attempt to do more
than merely regulate the registration
Of voters Does it not explicitly
state who shall be deemed qualified
electors, and fix the qualification OF
| those entitled to have their names
registered? The City Council can fix
no other qualification than that re-
| ouired by the Guy Charter.
The City Of Butte being a mere
| creature of the statute, deriving all
it's powers and authority from the
| the Territorial Legislature, it car as
| sumo no power or authority except
| that expressly conferred by Legis-
! lative enactment, and no power or
authority can be taken by implica-
cation.
Subdivision !, section ct Ordi.
nance Nc. So provides
SIN every case the affidavit of the
panty shows all the facts required to
be stated in the entry on the great
register, except the date and num-
Der of the entry. And for the pur-
pose of determining whether appli-
cants possess the necessary 4ualifi-
| cations, The City Clerk is authorized
; and empowered to administer to said
applicant the following oath ~
From what source does the City
Council derive its authority to confer
upon its City Clerk the power to ad-
! minister Oaths: Is that not an as
SUMPTION Of power only possessed by
the Legislative branches of the Gov
eminent?
Section 81 Code of Civil Proceed
ure Of.this Territory provides
"Every Court OF this Territory ;
every Judge, or Clerk, or Deputy
Clerk of any court {; ev. ry Justice OF
the Peace and every Notary Public,
County Clerk and every officer au-
thorized to take testimony, or to de-
eide uI on evidence in al proceed
ing shall have power to administer
oaths or affirmations.'
Does this statute author iZe the City
Clerk of Butte City to administer
oofhn IN NC n Fl 0ioI Cnrantxy u, t,t~.
Clerk: Mr.. Smith states in his COM
m%unication to the Inter Mount, III
that he has the authority to ad.
minister the oath required by the
ordinance, as a notary public. Does
he not know that as a notary public
he is a Territorial officer and that
such authority is not vested III him
by virtue of his official position as
City Clerk? He, as the legal advisor
of the City Council, knows, or at
least ought to know, that that pro-
vision of said ordinance authorizing
and empowering him as City Clerk
to administer II judicial oath, is
illegal. Sections rs and q of said
ordinance are az follows:
"Sec. &c. The Judge shall receive
the ballot, and before depo sitting 1t in
the ballot box shall distinctly an
nounce the name and register num-.
Der of the person voting.
Sec. ~. IF the name is found Oh
the copy of the great register. and
the vote is not rejected upon a chal-
lenge taken, the Judge shall, in the
presence Of the other Judges Of Flee
ton, place the ballot without being
opened or examined in the ballot
box"
Does not the provisions of the last
section t.y fair implication, prohibit
any legal voter whose name does not
appear on the great register from
voting" Are the judges of election
acting under this ordinance. en-
powered to take the oath of any
person except those whose names are
in the registry list: Certainly they
cannot under this ordinance accept
the votes of any persons except those
registered.
Is not that a reasonable construc-
ton of this section?
Wherein does the City Council de-
rive its power to make such regula-
lions? Is not that going a little fur
ther than the Legislature inte 1ded.
and is not that an assumption OF
power not possessed by the Legisla-
ture itself: NoaIegistratlon act ~
he sustained which deprives any Ie-
gally qualified elector of his right
TO vote and in order that any such
act be held to be legal it must make
reasonable provisions allowing per-
sons who are qualified to vote and
whose name is not registered, even
requiring other proof than his own
oath or affidavit. OF his right to vote
at the time of his Offering his vote to
the Judges of Election. / would call
the attention of the City ATTORNEY
and the "best legal talent" to the
following among the numerous au-
thorltles wherein this same question
Is discussed: McCray on elections,
sections s to 40; State vs.. Barker, IS
Wis, II: Byler VS.. Asher, Al ILL.,.
!O1; Supervisors, DuPage county vs.
People, 10 ILL.,, $50; Chester & G. r.
h. Co.. vs.. County Commissioners.
Caldwell, Y N. G., 4s6: Wood vs.
Fitzgerald, 3Oregon, 56s: Edmons vs..
Banberry, Is Iowa. If section p Of
said ordinance is prohibitory in its
provisions. and it in any manner
abfidges the right of suffrage it il
clearly unconstit %utional, and that it
Is prohibitory in it's provisions no
candid attorney will deny.
Regarding section Is of said ordi-
nance, a word is sufficient. It is
well known that every municinal
corporation has as such the power tn
make ordinances or bylaws, but not
10 supplement such ordinances with
the sanction of b penalty. For this
special legislative authority is
quired.
1t certainly will not be commended
that such authority has been given
to the City Council of Butte Civ bv
the Territorial Legislature.
1t is not my desire to discuss leya,
propositions through the ru6iic
press. My only desire la to brine