The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1890-05-26

| lions OF intention, and had gone hack to
| the originel statute requiring such decla-
rations 70 be made before a our Of re-
cord (R. S. Sec. 1885, q mistake which
act Of February I, 1876, restoring the power
OF clerks In that regard. Constituting these
statutes together there ID no reason to
doubt that the declarations OF intention
required In Sec. 1850 might also be made
before the clerks Of such courts.
Now. whether intentionally or other
wise, the provision of the law of congress
In the particular in question, has been en-
tirely ignored In the legislation OF the ter
ritory. II IL no reply to say that the law
of congress IL the Law OF the territory, and
that the territorial law must he g with
reference thereto. and ms though Il con
tanned the provision In terms. Because
the question here Is, what did the legis-
ture intend, and how did he Legislators,
the courts, the bar and the people of Mon
tana understand that legislation? On
this point there can he no dispute. IL Is
notorious, a matter of public history, that
persons who have simply declared their
intention to becom citizens have always
voted in Montana; that the oath taken by
such dcclarants never contained a clause
to support the constitution and govern
ment of the United States; that never
hitherto has II been objected that any de-
clarant was not entitled to vote because
he had not taken such an oath.
Congress-. we submit, Is charged with
notice OF this public history. this long
continued course OF territorial legislation,
this open n notorious practical con.
struction put upon that legislation, and
public action in conformity with II, con-
tinued for nearly twenty years after the
enactmant of this congressional limita-
ton, and never more clear and emphatic
han in the legislation of the last assem-
bly, which sat under the territorial organ
ization. Such knowledge on the part OF
congress is indeed to he inferred from the
relation of the federal government to the
territories. The territorial governments
are created by congress and a large part
hands of the federal government. The
principal officials are federal appointees.
The executive power and a principal part
OF the legislative power are vested i'm a
governor who is appointed by the presi-
dent, by and with the advice and consent
of the senate. The judicial power is like
wise reposed in federal appointees. The
same is true Of the territorial secretary,
general. II is made the duty
of the secretary of the terri
tory. by the organic act. to transmit
sion of the Legislative assembly one copy
OF the laws and journals of the assembly
to the president, and two copies of the
laws to the president of h senate, and
to the speaker OF the house OF representa-
tives, for the Use of congress-, in order
that they may he kept fully informed of
the action of the territorial government,
and the character of it's legislation. II is
to be presumed that this duty has been
complied with. Yet congress has never
in II instance exercised its reserved
power OF disappearing or annulling his
o~ftcn-repeated territorial enactment on
the subject of suffrage.
md this rule OF suffrage as prescribed
by the territorial legislature. Tho territory,
throughout the whole period OF its exist
ence, has elected all its Legislators, who
have enacted its vast mass of Legislation;
all its elective officials and its delegates
to congress-, who have been received and
seated without objection by the house of
representatives. And coming down to
the organization of the state, the dele
gates to the constitutional convention.
who formulated h organic law of the
state; the members of the state legisla-
ture; the long line of state, county n
township officers from governor down to
constable, the entire judiciary. including
the members of this honorable court,
were all elected under and in conformity
10 this territorial rule of suffrage; that Is
to say, by a popular vote, of which IL is
believed from thirty TO forty per cent. was
cast by persons who had simply declared
their intention to become citizens, but
had never taken an oath 10 support the
constitution and government OF h
United States. And IL these votes are not
legal, as IL is quite uncertain which OF h
political parties received the greater num-
her of such votes. il is manifest that II
would he impossible, without n general
scrutiny, to determine who in the long
list of candidates mt the late election was
elected by legal votes.
II is now seriously proposed to dis
franchise Mt one blow this great mass OF
voters, who nave failed to conform with
his provision OF the act of congress,
through no fault of theirs, hut solely
through the mistake or inadvertence, IL II
he n mistake or inadvertence, of others,
over whom they had no control. namely.
the territorial legislature. the territorial
governors and administrative officers,
and to take away from them a right which
the constitution Cart. ., Sec. y plainly in.
tended they should exercise for the period
of five years after its adoption.
We maintain that i'm this condition of
things the law did not require such an
oath from this class of voters. II is easy
To say that here is a positive law of con-
grcss prohibiting the territorial legisla'
lures from bestowing the right of suffrage
on voters of thisc class who had not taken
an oath to support the constitution and
government Of the Cnited States; thai
the laws Of q are paramount IN
the territories; that a territorial enact
ment In conflict Herewith Is void. But
while this is true In a general sense, IL II
not the whole truth. II has its limita
tions.
Congress by its inaction. by its acquies
ccncc, and. as we In this case contend. b,
it's participation In a long established
course of legislation and practice undel
il, like that To which we have referred
$ may and hould he held to nave ratified
: that legislation and practice, even though
, they he contrary to an express enactment
, of its owl.
r 4. But we go further and maintain tina
; congress in and 10y the express terms %
! the "Enabling Act' Of the nd If Febru
! AIRY, 1889. has ratified and approved Oh,
territorial legislation of Montana on TN,
. subject of suffrage.
I by section 3of that act IL is provided