The Washington critic., 1890-02-15
MONTANA'S SENATOR'S.
THEIR CASES CONSIDERED BY THE
ELECTIONS COMMITTEE.
Republicans Feel the Effects of the
New Rules Refused Permission TO
Record Their Names Because They
Were Not Present. at Roll Call.

Record Their Names Because They
Were Not Present at Roll Call.
The Senate Committee on Privileges
and Elections to day began the hearing
of the contested election cases in
Montana.
Mr.. Payne, counsel for Mcssrs. Saun-
ders and Powers, opened the hearing
with an argument claiming that the
Legislature in joint assembly voted for
Saunders and Powers and claimed that
they were duly elected and entitled to
seats in the Senate, unless that body
could 80 behind the Legislature and
prove that they were unqualified for
The position or had obtained their seats
by bribery and fraud.
In the case now under consideration,
he said, the certificates of election con
tradict each other two lacking the
signature Of the Governor, and two lack
ing the signature of the Secretary of
State. The journal of the House, he said,
showed that in joint assembly Saun-
ders and Powers had been elected. He
reviewed at some length the action of
the Legislature, arguing to prove that
the five Senators and ten Rep
resentatives occupying their seats
January ], and afterward evicted,
were Senators and Representatives
respectively until their eviction. The
Senate, which met January 1, was
dc fdcto Senate, and constitutionallyt the
Senators holding credentials accepted
by the Senate were entitled to act as
members of the Senate, and their ac-
tions as Senators were valid until they
were dispossessed of their seats.
Mr.. Payne quoted at length from the
case of Potter vs.. Rollins Rhode Island)
and the case Of Sykes VS.. Spencer Ala
bama). He endeavored to controvert
the position Of the Senate committee in
the Spencer case where it held that
the Senate had the right to go
behiHd the face of the returns and de-
termine whether the members of the
Legislature who voted for the Senator
were properly accredited and legally
elected members Of the Legislature.
If, he said, the Senate committee in
the present case should endeavor to de-
termine what members of the Legisla-
ture voting for Sanders and Powers
were legally elected, their action could
not be restricted to Silver Bow County,
but must extend to the sixteen members
of the Senate and fifty.fiv members of
the House who voted for Senators and
the Senate at the outset of an election
must prepare code of regulations for
determining the validity of the elections
of members of the Legislature, some
thing which had never heretofore been
considered necessary.
This doctrine, said Mr.. Payne, had
no basis in common sense There
would be neither pleasure nor profit
to the Senatesin running down 500,-
GOO illegal voters, repeaters, Indians,
pOlygamists, etc, an occupation which
would probably keep them busy TO the
end of their natural lives.
Mr.. Payne also quoted briefly from
the report in the case of Senator Turpe
1SSS), when il was held that the Senate
could not question the authority of a
member of the Legislature TO vote for
Senator when he held the certificates
emitting him TO vote in accordance
with the provisions of law 1t might
be contended, he said, that this doctrine
would encourage fraud in the packing
of legislatures for the election of United
States Senators; but the reply to this
was that our form of government is not
q pure democracy.
The acts of the people were per-
formed through agents, and the only
remedy which the people had if these
agents abused their trust was to be
found in the choice of purer agents or
| the choice of other laws and forms of
government.
Mr.. Payne read an extensive argu-
| ment to show that, under the constitu-
| ton of Montana, the action of the
| board Of canvassers was final in the de-
termination of the qualifications of
those entitled to receive the
certificates Of election and par
ticipate in the organization of the
Legislative. If this was true, he said
then the thirty men gathered together
| November 90 constituted the House of
! Representatives under the Constitution
and were majority of the members of
| that House.
Between the date Of the organization
and Powers were elected Senators,
January l and 2, the membership of
the Legislature could be changed in
only one way--that provided in the
| clause of The Constitution, making the
| members of the Senate and of
the House the judges respectively OF
the membership of those bodies. There
was no proof that any such change had
| been made. II was historical fact
that the same men who organized the
Legislature voted for Messrs. Sanders
and Powers for Senators.
II, between November 23 and Janu
ary ! and 2, any change had been
made, 1t would be competent for the
Senate to go behind the returns, not foi
hepurpose of freadjudicatipg, but for the
| purpose of accepting the adjudication.
If the election of January and was
valid, that of January could not be
whether it was held by usurpers or not
Mr.. Payne reviewed at some length
The technical points of the Silver Bow
contest, and with this closed his case.
Mr.. Sanders, for himself and Mr..
Powers, presented history, from their
point of view, of the contest and or
| ganization of the two Legislatures and
! an argument in favor of the validity
of their certificates.
Mr.. jerks then began an argument on
behalf of Messrs. Maginnis and Clark
He said that it must be proven, IN
order to give contestant a seat, tha
his election was by the real Legislature
A discussion followed between Mr.
jerks and Senator Teller regarding
the right of the Senate to &C
behind the election certificates, Mr.
jerks holding that the returns of the
| judges of election must be taken a!