The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1889-11-08
Judge DeWolfe's Peremptory Order
in the Mandamus Case Put
Into Operation.
The Canvassers Add Tunnel Pre-
cinct to the Vote of Silver
Bow County.
Clerk Baoth Issues His Certificates in Ac-
cordance with tho Result as Show.
by the Count

biIIt, NOV. f.-lSpecihl. - lnere WIS n
large crowd in the court room this morning
when Judge DeWolfe announced his opin-
ion, which was a verbal one The following
is yerbaton report:
In these cases have not had an oppor-
tunity 10 examine the various authorities
cited and referredto by counsel, and hence,
| inasmuch as ! stated, at the adjournment
of court last evening, that | would decide
| this question this morning, | must decide
as well rs my recollection of the
| authorities and my view of the
law will permit. IL is not necessary
for me 20 review what was done in the
matter. The court, in its ruling heretofore
made, held that the duty imposed by law
upon the canvassing board was purely
ministerial one-ln fact, IL was scarcely
more than clerical; il WAS as sim
pie as the addition of n column Of figures.
They, in disregard of what the court con-
ceives to be their plain duty under the
statute, went outside the limit of their
authority aud assumed 10 judge Of the ma
ture of the returns, and whether or not the
proceedings had been in every re-
spect in conformity with the law The
court held that this was beyond
the province Of the canyassing board, and
| hence granted a peromptory writ OF man
damus requiring them 10 count the returns
from this precinct, 81, for the relators in
these cases. From that judgment of the
court two members of this board have taken
an appeal 10 the supreme court of the terri
tory and have asked "A stay Of proceedings
until that appeal be heard. Now, many
questions presented by counsel are, no
donbt. interesting as legal propositions;
first, whether this Judgment in \ regu-
lar action at law, OF whether IL IL
judgment in special proceeding,
| or whether an appeal and special super
sedoas lies in a case of mandamus that can
be reviewed on appeal, or whether IL should
be taken advantage of by writ of error;
all these and various similar questions have
been argued fully and elaboraltey by coun.
sci, but do not conceive with my view Of
the law of these cases, that IL IL necessary
for me 10 decide any Of these points, and i
shall leave them to be determined by a high
er tribunal than this court. Looking at this
action and its RESULT from
different standpoint, having held
as ltlid heretofore, in granting perenptory
writ of mandamus, that the board trans
cended Its power IN the action they took in
casting out the returns Of this precinct, the
question presents itself then, should board,
constituted according 90 law Ion the per-
formance of a aiupio duty, be allowed, by
AN appeal. 90 defer the rights of parties, and
thus obstruct, AS ] may say, the entire
wheels of government by their proceedingsf
This is the point for the court TO decide.
Not only do the relators in these cases have
rights. bat the public have rights; the
realtors are entitled 10 have the returns
counted for them ns they were sent 10 the
board Of canyasscrs, and the people have
the right 10 have the men who were elected
upon the face of the returns at lenst granted
Il certificate for their Offices. The law pro-
yides another way 10y which those who
claim TO have been injured by fraudulent
votes. or by proceedings that are not in
conformity with the law, by which all these
things can be brought up and de-
termIned. In these cases the compet-
itow of the REALTORS have perfect
right aud the Inv affords them full md mn
pie machinery for them to contest the legal
lty of the votes east NJ that precinct, or any
other precinct in this county, nutwithsland-
ing the fact TINT the onnyussing board
counted them, they are all subject 10 exam
mutton and review. and If any OF the votes
cnst We're illegal, there is "A way OF deter
mining that fact and n way of determining
what were aud what were not illegal. But
in tins particular case | cannot
conceive, | cannot believe that il WIS
ever the intention of the lef-
islRture that canvassing board should
determine matters of this kind. IL s need
less for me 10 say what would he the effect
of granting supersedeas in these cuses.
The rel9tors in the last case are candidates
for the Legislature of the state of Montana;
II the certificates We're issued 10 them, which
should issue, If the votes of this precinct
No. "a, which were improperly rejected, were
counted, they would be entitled, prlma facie,
TO seats IN the body 10 which they were elect
ed. If they are denied those seats of course,
the certificates would be issued 10 their
competitors in the election. Certainly the
members of each house are the Judges of
the election returns and qualifications Of
its own members, but TO SAY thnt mere
ministerial board should have the right 10
determine question Of this kind is a mat
ter that was nexer in the contemplation of
the legislature, and it would be so mani /
testify wrong IN my opinion, 10 stay proceed
ings IN cases of this kind that this motion
to grnnt supersedeas in these cnses ia
oyefruled. Whatever may be said in regard
to the action Of the board in re-
gard 10 the right Of n majority of the !
board b. appeal from the decision, upon
that express no opinion, but do maintain
IN these cases that a supersedeas should not
ba granted, and that this writ should be /
made percnptOfy and should be obcyed by !
the parties 10 whom IL is directed.
Mr.. Campbell-ln order that no misun- =
derstanding may occur / desire 10 state 10
the court that We withdrew the motion for
'"pNi NtNeWH Nhu nttou upon Tue hpptii bold T
that we filed. IL was tactly Understood
between counsel that the writ WIS 10 remain /
IN nbeyance until II was desired by the court |
whether or not the appeal bond would oper- !
ate as a supcrsedeas.
The court-N peremptory writ IL, Of |
course, peremI tuy, as the very title of the !
writ defines itself and isn command 20 the
canyasslnR board 10 count the votes cast at
precinct "A for the relntors in these cases. &
! understand that these writs we're with.
held pending this decision. and the ruling
Of the court will be now that a peremptory
writ issue in each caae Of these two cases. / /
did intend 10 write an opinion In /
this case, but having decided the |
main point heretofore. aud as
the members Of the bar well know, IA am |
80 fully occupied with the duties before the
court, think / will not lle written re-
port In these cases.
The peremptory writ of mandate was is
sued at once and served ON Hall aud Judge
Irvine, AZ $50 these gentlemen met and
canynesed the vote, including precinct -,
and certified the abstract 20 the county
clerk and recorder, who will at once issue
certificates Of election to the candidates