The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-03-18
WHAT THE PEOPLE THINK
More Opinions from Citizens on the
Wisdom Of the Proposed
New Charter.
Two Prominent Attorneys Say
That it is Constitutional
Beyond Doubt.
Hon. j. b. Clayberc and Hon. A. fl. Nelson
Give Legal Opinions-A suggestion
Abou Meetings.

Ex-Attorney- General John B. Clayberg,
whose high standing in the legal profession
is recognized throughout the state, thinks
it would be much safer to adopt the charter
than to reject it. When asked II he had
seen ex-Gov. Carpenters statement IN yes
terday's INDEPENDENT as to the new charter
being unconstitutional he said: Il think
Gov. Carpenter has been misled by the
inaccuracies of the printed copy of the con-
stitution. He says the provisions of our
constitution are similar to those Of Cali
fornia relative to the passage of local acts
in certain cases, but it will be seen by a
comparison of The two constitutions that
there is one section of ours which IS very
much different from the section of the CAL
ifornia constitution on the corresponding
subject. That is. the enactments or amend
ments OF Especial laws relative to municipal
charters The constitution of Californla
provides Corporations for municipal pur-
poses shall not be created by special laws"
While our constitution, section ., article
Is. provides no charter of incorporation
shall be granted, changed or amended by
special law. except for such municipal, char
table, educational, penal or reformatory
corporations as are or may be under inc
control of the state. AS near as can as
certain by comparison | should judge that
part OF the constitution relative TO special
legislation was adopted from the constltu-
ton of Colorado, for the reason that the
general provisions relative to special laws
are the same in ours as that OF colorado.
and in addition thereto the provision last
above quoted has received construction by
80 xhak = a tNr1r~ tn h
abortion of our constitution. LII we adopt
ed the Colorado constitution We are sup
posed to have adopted it with the same con-
struction that the highest court of that state
places on it prior to such adoption
If this be true there can be no
Legislative assembly to amend the charter
of the city of Helena by a special law. In
nv Judgment that part of the constitution
above quoted, article fifteen, being special
in its character. would govern the general
provision in the constitution relative to
to amend, and sif it gives power to
amend, that power can be so used
as to make the amendment effective.
I have not examined the charter, as amend
ed, with sufficient carefulness to warrant
any opinion upon the question as to whether
contained in it, but / feel clear as to the
principle that the legislature had power to
amend the old charter by a special law.
'.There may be many crude things in this
amended charter but I think on the whole
the scheme as outlined is a good one, and
in my judgment 1t would be much SAFER Tor
the city to adopt the amended charter,
trusting to be able to correct any inaccura-
cies, omissions o. bad features by future
legislation than to reject it in toto. 1t will
be much easier to procure legislation clear
ing it up and making it certain and eff ect-
- 49, "a -...h L. H. 49, ~ i~Y> u-oHrI
ing the present charter, IT we reject the
amendment.
Hon. A. III. Nelson expressed the follow
ing views on the subject:
1.-THE question of the constitutionality of
the new city charter. upon which We are to
vote on Monday next. is fundamental. 1t
surely were better to bear the ills we now
endure than to seek relief by the adoption
Of an instrument intuently weak by reason
of its unconstitutionality. The attempted
remedy would but aggravate the disease. 1t
is true that section rs of article 5 of our
state constitution provides that the legis-
lative assembly shall not pass local or spe-
cial laws in any of the following numer-
ated cases, that is to say n Il 4 GREAT
ing offices or prescribing the powers or eu-
ties of officers in counties, cities. townships
or school districts" but that this inhibition
applies only to the creation of offices under
an existing municipal charter as originally
enacted, and not to the amendment of
crease or diminish the humber or
character of the Offices in any given NUM-
cipality seems to be proven by the express
delegation of such power by section six of
article 16, of our state constitution. 1.-The
legislative assembly may provide for the
election or appointment of such other
county, township, precinct or municipal
officers as public convenience may require,
and their terms of Office shall be prescribed
by law not in an any cass to exceed two
years, except as in this constitution other
wise provided"
On Monday next we are to vote upon San
act to amend an act to incorporate the city
of Helena, approved Feb. %, 1881, and all
acts amendatory thereof" not upon an act
merely adding to the charter of Feb. 81,
1881, a number of new Offices.
lu the case of Edward %broughton VS.. the
City of Pensacola. 81 U. S. 266 Justice
Field, who himself wrote the syllabus of
his decision, says: "a change in the char
ter of a municipal corporation, by an
amendment of its provisions, or the substi-
tuition of a new charter in place of the old
one, embracing substantially the same ter.
ritory, will not be deemed. in the absence
of express legislative declaration otherwise
to affect the integrity of the corporation
The other objections urged against thu
new charter are but disingenuous ~conject
ures as to what may possibly be its work
4AlSs tAlSho ~ LIN 'caSA SAttS
where like changes have been made, ar
known to be groundless.
Let US have a new charter and a city gov
eminent conducted as a business enterprise
and not as a political job"
Hon j.. III. Hershfeld is strongly oppose
to the new charter for several reasons: ''T,
begin with" he said, sit is in direct viola
ton with constitutional law. 1t is un
American because it takes power that be
longs to the people and places it in til
hands of three men. In other words
makes the creature greater than til
creator. These three men will have over
delegated to them without limit. TIL
whole thing is a scheme of real estate me.
to help their own interests and is thorough
selfish. The scheme for ~electing aldetme
at large does not meet with my endorsement
for l cannot see whore the benefit of such
change is to come. They say that this sys
tenn is i'll vogue in Nashville and works wei
but the conditions between the two cite
are far different. In that city the colore
population is very large and the elec
ton of aldermen at large is designe
to keep u controlling colored delega
ton out of the city council. L
this city there is no fear of ANYTHING of tb
sort. Besides this each ward has it's ow
local interests and peculiarities and desire
to have its own representation. certainl
fail to see where ANYTHING is to be game
by electing any part of the city council b
the system proposed. The worst feature {
tho charter, however, is the creation of IL
board of public works. 1t endancers
principle of our government because
places powers where they do not belong,
think that, the preservation of a vital pril
ciple of government should receive consi,