Daily Yellowstone journal. [volume] (Miles City, Mont.) 1882-1893, 1890-01-30
OF the Highest Tribunal cf the
State of Nj cntana on the
Legislative Status.
The District and Justice Courts
Each Lsdle Out Adequate JUS
tice to Offenders Yesterday.
IN SUPREME COURT.
Associate Justices Harwood and Dewitt
Affirm the Validity Of stat CeIt'f.
Gates Of Election.

Gates of Election.
The opinion In the Thompson man.
damus case, involving Ms IL does an
issue over which the people of the
state have been exercised for the past
four mouths, il of 50 much importance
that We surrender all Of our available
space tn II In this issue. and even then
1t is so lengthy that IT cannot he gwen
In full. The omitted portions, how
ever, are only those Uccasioned by
legal redundancy, and the sense of the
document is not impaired by their ex-
cision.
The opinion begins with q history OF
the case as shown by the pleadings
and after statement of the facts the
court says:
1t must now be determined whether
or not the act, the performances of
which Is here sought to he compelled.
Is one which the law especially .n-
joins upon the respondent as duty
resulting from his Office ss auditor OF
this state. THIS involves two PROPOSE
tiOns:
First--Is the relator entitled, apon
the iaQis shown, To have his said claim
aud ted sad settled, aud " receive O
certificate tn reof?
Secoud-Does the law eDioin upon
the state auditor the duty,f auditing
and settling said slain. ann issuing TO
relator certificate thereof?
There propositions will be consid-
cred Ia the order stated.
To the high office of legislator, aud
to persons occupying that Office the
law gu ,rantet1 certain rights, privi.
Iege, aud enOluments, which courts
Of justice will regard aud enforce In
proper cases ard upon proper show.
ing. Constitution Of Montana. article
5, sec. 5, Is; Blackstone, l64 notes
ard cases cited; Cushing Leg. Assem-
blies, secs. $40 to 597; Cooley's Consti-
tutional Limitations, 1862. 1893; Jeffer-
.on's Manual, Roberts Manusl; l
Kents' Com. 235.
But In passing upon o question OF
this character, relating to a person
claiming to be member of the Legis-
lative assembly Of tue state, this court
IL mindful OF the constitutional provi.
sion which places the power 10 tiy the
ultimate right to the Office In another
form, 1. e., in the legislative house
wherein the person claims seat.
Constitution OF Mont, Art. 3, Sec. 9,
That body and that aione having
the plerary Jurisdiction to try tue al.
TINA right to the office, II must bs
determined In the case at bar on
what character of prima facie evidence
will courts of justice emf ,rce collateral
or incidental rights and privileges he.
longing to the members Of the legislS.
tive sssembly. III other word, ~ mp
plicable to this case at bar, what con.
stitutes In the view of court, Of jus,
tice sufficient prima ,acie evidence ol
bis membership In the house of repre-
sentafives Of this state to entitle the
relator to the relief which he ssks,
that 10 to have his claim 10 the emolu-
ments of the office Of representative
rom Silver Bow county audited, set
tied and certified.
In the case ut bar II is asserted, and
not denied, that another person holds
q certificate OF election to the same o.
flee which the relator claims to be o
cupylnR, issued by the county clerk Of
Silver Bow county. II therefore be-
comes necessary ip the determination
OF this case to ascertain what beard or
person Ia by law authorized ~ canvass
the returns OF the election In question,
and to ascertain and certify the result.
30 as to eutitle the party holding that
muuiment OF title 10 the Office prlms
facie Tn p,aintsin his case In an action
OF this chsraei
The relator's certificate of election
emanates from q canvpssing hoard
composed of the governor. chief ms
tice and secretary Of Montsua terri
tory. accredited by the signatures Of
the said governor and secret ary and
the sesl OF the teri tory. The other
certificate, which In set up In opposi-
ton tn this, m held by another person.
emsDates from the county clerk oi
silver BOW county, hCcfedite0 u0uef
the hand and offic al seal VI thst on
Ger; aud this 10 not depied by the rela.
tor.
Ip the absence OF any mention ol
this latter certificate, the cousidera-
tion Of this case necessarily involves
the question 90 10 whether the rela-
tors certificate Of election Issues from
the legally constituted cauvaseins
board charged with the duty OF ascer-
taininR, from the returns, the election
OF members of the house Of representa-
iives. The prlma fAcie right 10 relief
rests upon the credentiAls, with the
facts Of service.
The act Of congress above mentioned
enabling the PEOPLE Of Montana and
other territories 10 form aud adopt
constitutions aud set no state governs
ments, provides In section 8 ~ follows:
[Here follew quotations from section 8,
D. 81 aud IS ofthc enabling at.
Having reviewe 4 these provisions II
the enabling act Of congres, No will
proceed To the constitution Of Mon.
faun and consIdor ia urovisioue unon