The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-10-29


whether the court wished 10 hear any reply
to that or not. He never knew of writ of
mandate issuing IN any other form than in
the name of the people. II there should be
anything in the point raised by the
defense. he would move TO amend the writ
10y striking out the word people. Mr.. Me
Connell referred to the celebrated Florida
case of similar nature, and said the writ
then had been issued in exactly the same
manner.
Judge Knowles responded at some length,
quoting New York. California and Nevada
cilses of a somewhat similar nature.
Judge Mcconnell read from "A number Of
legal blanks which he picked up in the
court room, in every one uf which the same
expression was employed "The people of
the territory of Montana" Ms was used in
the writ.
Judge Know es stated that the organic
net called the territory Of Montana a tenn
porary form Of government; therefore SOW
eregnty was in the territory and not in the
people of the territory.
This quibbing occupied AN hour and
half, until llsD O'clock, when Judge
DeWolfe stated that in the absence Of all
legislation on the point in question. and in
the presence of that organic act as quoted
by Judge Knowles, he WIS of the opinion
that the writ should read M claimed 10y the
attorneys for the defense. lie said that
he fully realized the magnitude and
Importance Of the case. lie had plenty of
time 10 hear and would give the counsel all
the time they desired 10 consult the author-
ties they might desire IN regard 10 the ques-
tion at ISSUE Though the matter was a
technicality. yet the court was obliged 10
take cognizance of technicnlities. The
writ had been directly attacked. and he was
of the opinion that the attack WIS well
founded.
Mr.. kirkpatrick said the plaintiffs did not
desire 10 resist the motion further,
but would ask leave to amend
the title by striking ont "the
people Of" He. read from the statute
stating the right Of the court Ia amend any
proceeding in the interest of justice where
error WAS shown. The statute clearly GOV
cred the point, and he did not think il
would be resisted. Mr.. Campbell stated
that he did wish Ia resist that motion. The
change desired virtually substituted an
other party IN the action, aud that could
not be done by amendment.
At this point the court adjourned until
O'Clock to give counsel an opportunity 10
produce authorities in support of their posi-
tions,
IirE DECISION.
The temporary md seeming advantage
secured 10 the republicans IN the decision
of the court sustaining the motion 10 dis
miss the writ of mandate in the Mediation
case ON Rn extreme technicallty inspired
them with confidence IN the belief that de-
lay would be secured. When the decision
of the court was rendered an application
WAS made Ia amend no ns 10 make il con
form with the decision of the court, and for
two hours during the afternoon session ar
guments in support of and against the
power of the court to permit this were in
dulged in.
The republicans know very well that their
| only chance Ia, and Il might be truly desig-
| mated desperate one to delay proceedings
and when the decision WIS unfavorabe 90
them upon the motion to amend the bright
| hopes which began To assume u tangible
shape disappeared, and melancholy seemed
to settle upon them.
In permitting the amendment, Judge De-
Wolfe said; "rhis morning gave as a rcu-
son for my opinion, that neither in the or
| ganic net nor in any statute in this terri
| tory were the people of the territory Of
| Montana designated as n political entity,
that had the right to 90 into court, and in
asmuch m the territory Of Montana was
created by the organic net. u seemed
10 me TINT the sovereign power.
if might qualifedly use that
term in connection with territorial govern
ment, rests there. II seemed la me, how
ever, at that time, as counsel has well
| stated, that this motion was based upon ex-
ceedingy refined and technical grounds;
but inasuuch as il wis presented 30 me, il
had to be decided. decided II with the
best light before me nj that time. have
| listened carefully 10 the authorities which
have been cited bearing upon the question
of amending this writ. These cnses which
have been cited 10y Mr.. Campbell are not
| analogous 60 the one at bar. The princ-
f..I
| cannot bc cOntroycftcd; but they are not
! predicnted upon facts such 0s exist here.
| The people OF the territory, and the terri
| tory % Montana substantially express the
| same idea ana the same thing, and in
this proceeding the purpose IL to in
woke sovereign power, whethor IL is
vested IN the people uf the territory Of Mon
tuna or in the territory of Montana. From
the fact that the territory uf Montana il
designated IN the organic act ns a political
entity, and the people of the territory of
Muninnn are now here mentioned asa DO
liticgl entity, ! have held that the writ
Rliunld run ~ ! have decided, hut IN sub
stance and in reality, they are precisely the
hnme thing. considering the purposes
sought to bc accomplished by the proceed
! lngs; and think, under the liberal provis-
ions of our code IN regard 10 amendments,
! that this amendment should be allowed.
! The intention is clearly manifest that il is n
| proceeding intended 90 be instituted in the
name oi that political entity which WIS
formed and c0lated under The organic net,
"a wit: The territory Of Montana.
Evidently this was expected, for scarcely
was the decihien made when Mr. Campbell
made another motion which read aa follows:
"Now come the defendants by their nt
torncys, Hmm Knowles and THOMPSON
Campbell, and appearing for the purpose of
tins motion only, move the court to quHsh
and set aside and discharge the amended
writ Of mandate being ON the follow ng
grounds, 90 wit; First that the said court
has no jurisdiction Of said defendant bonrd
or of Hnd defendanta, or either uf them. on
the following grounds, 10 wit: First, that
the said writ IL made returnable nj an ear
lier day than return thereof authorized by
law; second, that there are two other writs
other than the one now i'm force, in n pro-
ceeding between the same parties. com
na1ldlng the same act tO he done and per
formed 10y the same defendants as herein,
and returnnble another day, 10 wit Nov. T.
A. ID. 1859, before the nme court, the Same
judge and M the same place; nnd forthwith.
third, that the judge Of said court WIS, al
the date of the issuance Of said writ herein
10y him, wholly disqualified from acting ms
such Judge and issuing said wfit. because of
his then interest in the result Of the pro-
ceeding t0 enforce the same; fourth, that
the Judge of said court il now wholly dis
qualiftd. sitting as such Judge in the hear
lng hereof, or Of making any further order |
herein. 10y reason of his interest in the re- |
suit OF the proceedings herein"
Ila FauItftU f.f