The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-11-01

other legal duties than these 10 perform;
aud. ms It would not be within the province
of the pruceedinl in mandamus 10 compel
them 10 20 behind the returns and deter
mine the actual legal vote cast, so they
cannot set up IN law what does not concern
them as officers, as u defense when they are
required to DO what does not concern them
as officers under the provisions Of law"
The answer in one place states that la
votes We're cast at precinct "a. | am NJ a
loss 20 know how this fact could appear,
except ty the returns which a majority of
the cany0ssinS board rejected. II it APP
pears by the returns il follows from neees-
sity that the returns were sufficient 20 en-
able the c0nvassing board 10 ascertain the
vote onst, and for whom cast. and this was
sufficient TO enable them TO make the alb
stract of the votes required at their hands.
this admission Of the answer also egatives
the allegations that il could not be easily"
determined. from the returns the number
of votes cast. and for whom cast. Whether
easily" ascertained or not, II seems to
have been ascertained for the purpose Of a
pleading, and as defense against what the
law enioins as public duty; and, If useful
for such purpose, why could not the
knowledge thus acquired be MS well applied
in making abstracts of the votes cast at the
precinct in question:
No reason has been stated, or can he im-
agined, why, if the vote could be nscer-
tanned from the returns, IL should not be
counted by the canvassng board. Many
other interesting questions have been pre-
sented III the argument of the case, but
want Of time prevents their consideration.
II follows from what has been said that,
in the Judgment Of the court, the causes
shown IN the answer are not sufficient to
e.
ers 10 obey the alternative writ heretofore
issued. IL il therefore ordered that the
peremptofy writ of mandamus be issued to
William Nj. Jack William Il. Hall and
Caleb h. Irvine commanding them to make
the abstract of the votes east for said rea-
tor as directed in the alternative writ here
tofore granted.
Scarcely had the court concluded the
reaeitg of the decision, which was listened
to with rapt attention, when Mr., Campbell
announced that he took exceptions to the
ruling of the court and gave notice of APP
peal. The attorneys for the relator stated
that they had prepared peremptory writ
OF mandate. which they desired the court to
sign, and no objection being made 10 this
by either Knowles OF Campbell, this was
done with the understanding, however. that
il would not be placed in the hands of an
officer for execution until the matter touch
ing the right or ability TO appeal had been
disposed Of 10y the court The peremptory
writ of mandate is as follows:
rERrAToRy WRIT OF MASDAMus.
In The district court of the Second Judi
cial district of the Territory of Montana
in ane for the county of Silver Bow. John
j. Mediation, ex. rel. VS.. William Nj. Jack,
William n. Hall and Caleb T.. Irvine, board
of canvassers of Silver Bow county.
To William NJ. Jack, William +. Hall
and Chleb l.. Irvine, the board Of canvas
sers in and for the county of Silver Bow.
and territory of Montana, for the election
| held ga the first Tuesday of October, 1882
| for the Office of district Judge for said coun-
| ty. and for the other offices necessary in the
| proposed state of Montana, and for the
| adoption or rejection of the constitution of
the said proposed state of Montana, greet
ing;
Whereas, on this 3lst day Of October,
| 1859. this cause coming TO he heard. upon
the plaintiffs application for peremptory
writ of mandate herein, and upon the
pleadings and proceedings therein, the fol-
lowing Judgment was this day rendered and
| entered:
This cause coming on for hearing upon
the REALTORS motion for Judgment upon the
| petition, order and writ, and answer and
riun of defendants. II is ordered, ad-
Judged and decreed that said defendants
had no power or authority to exclude said
precinct No. "a, and that their action there
IN WIS illegal and void; and that the re-
turns, including said precinct. constitute
| the true and correct result of said election;
and that said relator have his peremptory
writ of mandate as prayed for in his peti-
ton; and recover his costs and disburse-
ments in this behalf expended this 3lst
day of October. 1889"
And, Whereas, il appears that the said re-
lator is entitled to said writ, and that he in
a resident and citizen of The county Of Sill
yer Bow, territory of Montana, and n duly
qualified clector thereof; that on the first
Tuesday of October, 1888. there WAS a gen
eral election held in said county of Silver
Bow. and Throughout all the other counties
of the said territory for the office of district
judge and for members Of the general as
sembly and for u full set Of stnte, county,
district and township officers, and for the
adoption or rejection of the constitu-
tlon of the said proposed state of
Montana, under the provisions Of an act Of
congress of February 22 1889, and denomi
mated AN act to provide for the division of
Dakota into two states. and 20 enable the
people of North Dakota, South Dakota,
Montana and Washington TO form constitu-
tions and state governments, and To be ad-
mitted into the union ON an equal footing
with the original states, and TO make dona-
tions of public lands 10 such states" M d
usually denominated "'rhe Enabling Act;"
that the said relator, John j. Mediation,
WAS candidate upon the democratic ticket
at said election for the office Of district
judge Of the second judicial district, com
posed of the said county, and Levi j. Ham
itOn was the republican candidate at said
election for said office; that you are the
board Of canvassers constituted for the pur.
pose of canvassing the votes received by
the candidates for the Office Of district
judge Of said second Judicial district of the
said county, and for all the other Of
iicers for the proposed state of Mon
tihn, cast nt said election on the
first Tuesday Of October, 1885, that you
counted the vote cast Mt the said election AZ
all precincts of the said county, except the
vote cast at precinct No. - of the said
county, and this you refused To count: that,
by the returns 50 counted by you, exclusive
of precinct "a. said relator received 33H
votes for the Office of district judge, and his
opponent, the said Hamilton, received 3475
votes for said Offices that the relator re-
ceiyed III votes at precinct No. -, and his
opponent, the snid Hamilton, received three
votes at said precinct; that, exclusive of
said vote at Hnid precinct "a. said Hamilton
received minority Of said vote, but. in
cluding said vote NJ said precinct, the rela-
tor received majority of twenty-seven
votes; that II was your duty, as said