The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1890-05-22
THE SILVER BOW CONTEST
Judge Blake Prepares a Decision
Rejecting Precinct Thirty-Four
as Fraudulent.
Decision Of the District Court Re.
versed and Lloyd Declared
Elected Sheriff

Decision Of the District Court Re-
versed and Lloyd Declared
Elected Sheriff
The Associate Justices Concur in the Opin-
ion and the Lower Court Ordered
to Do Likewise.
The opinion of the supreme court in the
Silver Bow Shrievalty case was handed down
yesterday. II is volumnious document,
containing forty-fve closely written pages.
Opinion by Blake, chief justice. Following
is synopsis of the decision:
This is an election contest between Lloyd
and Sullivan, who were candidates for the
Office of sheriff in the county Of Silver Bow
at the election held in 1889. The official
abstract of the vote cast at the election, ac-
cording to the canvass which was made Oct.
IA, 1879, gave Lloyd 8, 400 and Sullivan 1858
votes. There was no other canvass of the
vote for these parties, but the
Of election to Sullivan. The statute,
which governs the procedure and trial
of the issues arising in this proceeding pro-
vides as follows: 7All contests Of county
officers shall be tried in the proper. county,
and when an elector shall wish to contest
such an election he shall file with the clerk
Of the board Of county commissioners, with
in ten days after such person shall have
been declared elected, statement in writ
ing, specifying the grounds of contest, veri-
fed BY afidavit, and such clerk shall issue
to the contestant notice to appear ct time
and place specified in the notice, before the
district court. And the clerk of said court
shall serve certificate to the person de-
clared to be elected by said court, and he
shall be entitled to hold said Office until
such decision shall be reversed on appeal"
Such notice was filed BY Lloyd and answer
made by Sullivan. 1t is well to observe
some of the proceedings upon the trial, and
be recited in the language of the court be-
low: Cause came on for trial the 18th day
of February, 1880, and Judgment was rem
dered in favor OF Eugene D. Sullivan, who
was declared to have received majority of
all the legal votes cast at the election held
Oct. LIST, 1889, in Silver Bow county; and
the findings offfacts and conclusions of law
thereon are given.
Lloyd then filed notice of his intention to
move the court to vacate and set aside the
decision of the court and to grant q new
trial of the said cause. April Sd, 1880,
Lloyd appealed to the supreme court. The
respondent contends that the motion for a
new trial does not lie, and that this court has
no jurisdiction of the appeal. The statutes
and constitutions of the states are not har-
monious upon this question; The law Of
Judgment of the district court shall not be
final, for its terms expressly limit the right
Of ''the person declared to be elected" to
center upon and hold said Office until such
decision shall be reversed on appeal"
The statute concerning this subject pro-
appellate jurisdiction in all cases tried in
the district courts.'' And from the consti-
tuition and the law it is clear that the ap-
pellate jurisdiction of this court extends to
all cases. actions, and proceedings which
have been finally decided in the district
courts. The case of Heyfron vs. Mahoney,
July 8, 1889, which was an election contest
for the same office, was argued upon ite
merits and the jurisdiction of the supreme
court was not questioned. Numerous cita-
tions are made to sustain the position OF
the court.
of the findings of the facts by the court be-
low. The returns of the election at precinct
"a were delivered to the board of county
commissioners by w. A. Pennycook. The
said returns contained the proper tally
sheets and extensions, duly certified. The
6h1U IotNIuS 1EO pIcCluCb Of SHOW upon
their face, and the court finds the fact to be
that ia votes were polled at said election, and
that Eugene D. Sullivan received 1875 votes
at said precinct, and the contestant, John Z.
Lloyd, nine votes, and in the county Lloyd
received 3,499 votes, and Sullivan 3,52s
in favor of Sullivan and the court SO finds
the fact to be. Then follow extracts from
the decision of the district court in
regard to tho fairness of the election at
precinct "a. From the foregoing the SUI
preme court says: 1T is apparent from the
finding of the facts that the oetion OF
either the appellant or respo' pend
ed upon the vote of precinct 81. Is court
below decided that the returns. which had
been rejected by the board OF canvassers
we're valid and exhibited the true count OF
the ballots which had been cast by the legal
voters. This is the battlefield Of the judi.
cial conflict. We are surprised that the
counsel for the respondent maintains that
''the question of fraud in the conduct OF
the election at precinct "a, which was thrust
into this case by contestant against the OBJ
lection of respondent, is an immaterial
matter, and cannot be considered an ele-
ment in its determination" This was the
main issue at the trial upon which testimo-
ny was offered by both parties. The state
ment of contest says that the county clerk
disregarding his plain duty, issued certif-
cate of election to the said Office to Suilivan
That SAID clerk claims to have knowledge OF
the returns of q large number of votes fol-
the said Sullivan as returned from precinct
81; that in fact and in law there were nc
legal returns presented to said canvassers
from precinct 81 The answer denies these
allegations. The transcript shows that the
appellant at all times assailed the returns
Of this precinct and the respondent did not
file demurrer. In Heyfron VS.. Mahony
we decided that it was proper to allow the
grounds to be amended to conform to the
proof. We think the trial was conducted
upon the correct theory and Interpretation
of the pleadings This view is entertained
by distinguished lawyers, whose opinion
upon the issue involved in the contest is en-
titled to great respect. Hon. George Gray,
of Delaware, delivered a speech in April
1890, in the senate of the United States. re-
garding this matter and said: II had in
tended to refer to the opinion of the court
of the state of Montana in a cause that wae
properly before it concerning the election
in Silver Bow county, in which the whole
conduct of that election was gone into
judicially, and judicially found and deter
February. The court makes certain find
ines. They are very interesting. of course
not binding upon the senate. but certainly
persuasive as the judgment of a court upon
the facts that were in contest before it in q
case pleaded to issue, and in which the
issue involved the integrity of those polls. .
The fftieth finding of fact supra, is ther
quoted by the honorable senator. who has
bias for the respondent. We have read
carefully every speech and document relat
ing to the admission of the senators from
this state, and cannot find any expression
OF dissent from this remark regarding the