St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1890-02-16
there were three points OF questions to
bp Catprminnd.

be determined:
First-Is there q. prima facie right to seat
in the United States senate? He affirmed
that there is,- and that it is In favor of his
clients.
Second-Is there, or was there a legislature
TO elect senatOrsY There was. he said land the
certificate of the clerk of the commissioners
of Silver Bow county is the only eredenttial
of right of representation from that eonuty
to sit therein.
Third-In whom is this prima facie right
existing? Mr. jerks said that it existed in
Messrs. Maginniss and Clark. They have the
title, and they have the right, back of the
title, from the people to represent the state
Of Montana in the United States senate
Upon til. first point Mr.. jerks quoted from
the statute of July. 1866, to show what con-
stitutes prima facle right TO seat III the
senate. The possession of the certificate of
the governor, even though it lacks the seal
ana countersign of the secretary Of state, full
fill the requirements Of the statute.
A colloquy here ensued. Senator
Teller interrupted Mr.. jerks to say that
the principal question was ''Who has
the real title; whom has the legislature
the title?" Mr.. jerks said that it must
be proven in order to give contestant a
seat that his election was by the real
legislature. Each house must have
been organized and. after taking
vote separately, have acted in
joint assembly. Mr.. jerks then went
on to 6rg1e that the Democratic
ass emily had convened in the court
house according to the proclamation of
the governor and on the day named.
He had affidavits to the effect that the
governor had given instructions to the
custodian of the building to admit all
persons claiming the right to admission.
Mr.. Sanders SAID the certificate of the
governor containing these instructions
had not been given to the custodian
that it had remained confidential be-
tween the governor and custodian,
81 DISPUTE THAT STATEMENT"
said Mr.. Maglnnis, rising to his feet, ex-
citedly. Continuing, Mr.. jerks said
that nobody had been excluded. Ii it
should be established that the legis-
lature which met at the court house, the
place designated by the governor, was
the legal legislature. then the whole
question was settled. He claimed that
the time and place of the assembly at
the court house was in accordance with
the governors proclamation. Former
legislatures had met at the
court house. The governor had
not issued instructions excluding
any properly authorized person from
clare the result, Mr.. jerks argued. does
not give the power to grant certificate.
The state board had power only to can
vass. while the clerks of the several
boards of county commissioners .were
those who could declare the result.
There was some objection to this last
statement, Senators Hoar and Spooner
dontending that no such power was
given to county clerks. Mr.. jerks an
Swered that granting this were so. the
evidence came back that there was no
power granted to determine the result.
Mr.. jerks thought the heat that was
manifested in Montana after the cleo
ton might have Influenced some of the
certifying officers in making out their
certificates. Mr.. jerks quoted the
views of Senator Carpenter in the
Sykes-Spencer contest, which has been
combated by Mr.. Payne. Mr.. Teller
asked Mr.. jerks if he thought Mr.. Car
penter'S view of the right of the senate
to go
BEHIND THE ELECTION CERTIFICATES
was good law. Mir. jerks said that as
far as he could tell it was. Mr.. Teller
wanted to know if the true interpreta-
ton of Mr.. Carpenters opinion was not
that the senate ought to go back and
find out whom the people wished to
represent them. Mr.. jerks said that
the senate had right to go back to the
decision OF judicial tribunal from
which there was no appeal. Ii the
legislature had quorum without the
disputed votes, the senate had no right
to go beyond its decision; but
if the legislature did not have quorum
present then its decision was not final
Beyond that was the canvassing board.
But that was not a judicial tribunal.
Beyond that was the county canvassing
board, whose powers were still more
limited. Behind that were the judges
of election, and they were a quasi
judicial tribunal. The logic of
the Carpenter decision then took
the senate back to the last
Continued on Sixth Page.