The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-11-20
THEY MUST 81 COUNTED.
Supreme Court Passes Upon the
Benton Pigott Election Con-
test Case.
Populist Votes for the Republic
can Nominee Cannot Be
Thrown Out.
CSntesting the VIII Of Henry JncOb
Kenck and Allegations Made Of
Undue Influence.

A decision was rendered yesterday by the
supreme court in the Benton Pigott election
contest case from Cascade county declaring
that the returns must be canvassed and the
votes cast for Benton counted. Charles II.
Benton, of Great Falls, WAS the nominee of
the republicans and the populists for dis
trict judge. William L. Pigott was the
democratic nominee. Pigott claimed that
Benton was not nominated by a convention
of populists, but that his nomination was
certified to the county clerk by the execu-
tive committee Of the patty in Cascade
county. This he commended was contrary
to law and wanted the eanvassinR bonrd
prevented from counting the popullsI vote
for Benton, which would elect him. lie
applied to the supreme court for n VIII OF
prohibition to prevent the count. A mo-
ton to quash the writ WAS made on behaii
OF the canvassefs and this is sustained.
The opinion is by Chief Justice Blake, AS
sociate Justices Dewitt and HAYWOOD con
curing, and is as follows: This is an APP
plication for a writ of prohibition to re-
strain the board of county canvassers of
the county Of Cascade from eanvassing and
counting bho NotSp oPlS'A' SI~
abstract of returns of the voting
precincts to have been cast Tor
Charles III. Benton, as the candidate of tho
peoples party, and also the candidate OF
the republican party for the office OF dis
triot Judge of the Eighth Judicial district
of this state. 1t is alleged in the nildavit
\ that the relator was nominated by the
democratic party for this office, and re-
ceiyed at the election held Nov. 3. 1882. q
higher number of votes than said Benton
as the candidate of either of said parties;
that the combined vote of said parties for
said Benton exceeds the vote for the re-
lator; and that the RESPONDENT will. unless
prohibited by this court, count for shid
Benton all the votes cast for him as the
candidate of said peoples party. and re-
publican party. 1t is claimed by the re-
lator that the certificates of nomination OF
said Benton, by the said parties. are void;
that said Benton WAS not nominated &C
co ding to law; and that the respondent has
no authority to count SAID votes Tor SAID
Benton.
A motion TO auash the writ has been filed
by the respondent. 1t Is not necessary to
comment on all the grounds which have
been discussed upon this hearing. 1t Is
maintained by the respondent that the writ
of prohibition cannot be resorted to by the
%relator, but We have assumed for the pur-
uose of determining this motion. without
expressing an opinion thereon, that this
proceeding affords a remedy.
What Ithen are the duties OF the board OF
county canyassers under the statute?
TT canvass must be public by opening
the retui ms and determining the efrom the
vote of such county or precinct tor each
person voted for, and for and against each
proposition voted upon at such election,
and declaring the result thereof" (Sts. .
Sess,. u. 301, sec. A.
Tine board must dc clare elected the per
sons having the highest number of votes
given for each office to be filled by the
votes Of a eingle county or subdivision
thereof" lists. 2 Sess., p. 3O2. sec. 81
The relator insists that the board oil
county canvassers has the right to examine
the certificates of the nomination of saio
Benton and ascertain whether the law re-
lating thereto has been complied with; anC
that the counting or rejection of the votes
cast for said Benton depends upon the re-
suit of this investigation. The statute
supra seems to be clear in defining the
duties of the canvassing board and con
forms to the principles laid down by the
courts. The observations of Mr.. Paine, in
his work on elections, should be considered
in weighing these propositions: "Ihe sim
pie duty of the canvassinR board IL to de-
clare the apparent result of the voting
All other questions are to be tried before
the tribunal invested with jurisdiction
of cases of contested elections,' (sec. COB.
''When papers are presented. as returns, t.
county, district or state cnnyassers. it be
comes the duty of the canvaesers to dete
mine, on inspection of the papers. whether
they arr, in fotm and substance, legal re
turns, and also to determine, on inspection
of the papers. and on consideration OF thu
mode of their presentation, whether the.
are authentic returns. The canvassers
having decided that the documents are le
gal and authentic returns, are not permit
ted, by the statutes generally in force II
the United States. to go behind the re-
turns for any purpose, but are required t.
canvass the votes. as mlnlste. la olhcers
strictly in accordance Herewith" (Sec
6O4.) "Canvassers, in the exercise of min
canvass, rs election returns, any papers no
duly authenticated, in the mode pre-
scribed by law" (sec. 6l4.)
The statute regulating the nomination 0
district judges. was approved March Il
1889. The sections supra. concerning tn
were enacted March Z. 1891, but simlla
provisions were in force for a long period
within the tie ritory. We are unable t
find in these acts any language whic
changes the uies which have always bee
followed, and authorizes the respondent t
inquire into the validity of the nominatio
of said Benton for office.
We are therefore of the opinion that tn
returns of the voting precincts of tn
county of Cascade. if genuine and properl
certified, must be canyassed, and the vote
cast for said Benton for said office, must b
counted. There is nc allegation in the aft
davit of the relator that these returns mr.
III any respect irregular or defective. w
hold for these reasons that the affidavi
does not disclose n proper case for the Is
suance of the writ. 1t is ordered that til
motion to quash the writ be sustained.