Daily Yellowstone journal. [volume] (Miles City, Mont.) 1882-1893, 1890-01-30

his subject. THE constitution and
ordnance No. are then quoted a.
far ss they bear upon the question.
the quotations are: See. -, schedule,
sec 4; see. IL Of the sch-dule; ordi-
Nance No. 2, first, fifth, sixth, seventh
aud eighth sub divisions.
IL l. clear tba' said act of congress,
lrgl.la ing for the people # ia terri
tory o. Montana, supplemented aud
carrito out Dy the constitution and
ordinances framed aud promulgated
by the con. titutionai cOpvt ntiup, snd
rstiti-i 10y the people of the t~rrito, =.
covered the VIII 'le question as t. what
board should canvas. the votes cast at
tI- late eli ctioD, b, tn for and against
The con.tituii III, and for members of
the legislative assembly, aud state and
district officers, aud declare the result
the flf h paragraph OF ordinance 2.
above quoted requires that The returns
of sad election for the adoption or re-
lection OF the constitution "shsll be
made 10 the secretary of the territory.
who, with the governor and the chief
jusIice OF the territory, or any two Of
them, shall constitute n board of cam
vassers. who shall neet at the office Of
the secretary Of the territory ON or be-
fore the thirli.th day after election,
ard canvass the votes 50 cast, and de-
clare the result"
The eighth paragraph Of the same
ordinance provides "that the votes for
sll the state officers, members of the
legislative assembly, sud district
judges shall b- returned and can uvsssed
ia the same manner aud by the same
bosrd as Ia the vote upon the constitu-
tion.n
1t is contended by the respondent
that statute of the territory of Mon
tana, existing prlor to the said act Of
congress and prior to the acceptance Of
the constitution, pro ided contrary to
the act OF congress and the heronstitutiOn
and ordinances above quoted, in that
this statute provides that the canvass
OF the votes east Tor members "f the
legislative assembly shalt he made by
The boards Of county romDissi )ners {
the r, 'peciive counts In the i.n.
,oiy and certificates Of .sc,ion shall
be issu. ny the clerk Of the bad of
county commissioners. Comp. STAT.
usas, sec. 1888, p. a.;;?.
This position il unt ton: ble. There II
no statute Of the terr,,oly 81 Montspa
brought over and adopted by the peo.
pie OF this 81 ate contrary 10 or In cDn.
fiict with the constitution thereof, for
this plain reason: 1t is provided by
the sct OF congress above Quoted, en-
abling the people Of ts'd Territory to
form constitution and state govern :
ment, that "all laws in force: made by
said territoriss Mt the time OF their ad-
mission into tie UnioD, and not In
consistent with this coTstitui nm, or
the cons. .itution or laws OF the U1lted
State, Of America, shall be and remain
In full force pa the laws of the slate
uutii atrr ior repealed. or until ey
expire by their own li.nitation.' Ey
these D. DIVISIONS the statute law OF
Montana territory = re-mould.d d at
once II join 10 hsrmony with the stale
constitution.
An example Of this notification, OF
:e.mouldipg o. the statuts law t. bar
mcnize with the constitution. 's found
IN reiereD to the constitution of the
grand jury. The express letter Of the
statue In force at the time the state
was edmit ed into the Union provide d
lat this body should cors'st OF sixteen
peIsors in number, OF whom tw live
)rld "fipd a true bill" The safe
)nstitution provides that the grand
jury shall consist of seven persons OF
whom Ave are confident } lind an ip-
dictmen'. II he's been abr 1dant' :.
provided by the It o. corerIs", and
the sfste constitution. that the stLtut ?
In in e roe ., modified by the const'tU-
tion and IL cannot be meiptsi-ed,
either as q logical or ieJsoDable cor
clus'on that there 's COT n'ct. where
the latter aud pslaipour organic
law, bss expf, ssly s6or I'd the 70, mer
statute Law, ~ modified by the cousti-
tutor. S'a;e vs.. All Jim. 8 Mcntans.
Counsel for res, ,,ondent In this con-
nection contends that the ordinances
fran d by the cons. .'tutional Cpnven-
tion, snd apnends 4 , the constitution,
we're not part OF tia, instrument,
and did not have the force end ef ,.
O. constitu' 'onsl prJv,slops. That for
tbis ressoa the provisions Of the o, d.
nance declaring that the governor,
chief justice ard tecre,a rof MoptaDs
should copstitp'D &C i've sing board
ceavs-s he votes aud declare the
u luit Of the elet 'oa Of member, OF
/, re legislative -embly. W i.npotept
to work a change or modificl' ;on ~
the statit, pro, q 'ng tbst The cert'fi-
cate OF election OF sdch members shall
be VIC by the county clerk. Hent ,
the etst,' stands a al force, and
the county c,e-'s's ~ a 1,e's the hs 1t
prma iacie evidence 20 I ar.y's right
I ], q se 10 N he Les 'slsuve ssse nbly.
No arlho, lio, have been brought 10
the aiteD on of the corr. % sustain
the respondents pt 'l'iou n resr ect 10
ordinances Nmed aud promulgated
by constitutional conventions.
Here 10 cited Stewart vs.. Crosby,
IS Texas 548; Ps'pe on elec; 'ons, sec.
294.1
The court coutinvts:
To declare that the county, clerks
certiflc,te o. election to the Ofrce 10
Que stion 10 the highs. pr'ra facie
evidences Of tille'o the once, ~ sgainst
the certificate o; the capvesslng board
constituted By the act Of conere %, and
the ordinance framed by the consiite-
tinnsl convention and sdopi I'd by the
people, would he Ia effect 10 decls.e
that the pI DIVISIONS Of the st,tui's In
this respect stsnd without uodifcsi ON
by the act Of congcss aud con stitution
and ordIaance., and prevail over them