The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-01-01
REASONS OF The COURT.
Two Opinions Handed Down In the
Choteau County Canvassing
Board Case.
The Exclusion OF the Box Elder
Precinct Returns Pronounced
Invalid.

3R00AASv SA0AAAS0A
Invalid.
Associate Justice Dewitt says That One
Justice Had nc Authority to Issue
the Writ.
Two opinions we're handed down ysstsr-
day morning in the Box Elder oase BY the
supreme court. One 10 by Chief Justice
Blake and Associate Justice Harwood. and
the other by Associate Justice De Wit dis
ssnting from the decision OF the court de-
nyinR the motion TO quash ths writ ON the
ground that IL was not issued BY the court.
After rscitins the history Of the case a.
given In Eugene Il. Lesch's affidavit accom-
panyina the application for the rersmptory
writ 10 compel a re-canvass OF the vote OF
Choteau county. and 40 detailed In the pro-
test Of Alfred d. Hamilton. the court says:
II appears from the record Of the pro-
cesdingA, that the snid board of canvassera,
after the fling Of tho protest of said Hamil-
ton. and said afidavits, and the argument
OF counsel, decided to strike out. and not
canvass the reforms from said precinct;"
that the members signed the abstract OF
election returns. which was made out in ac-
cordance with this decision; that 1t was de-
olared that the PERSONS named in said abb
stract, who received the highest number OF
votes were 'duly elected" and that said
Minar and Dunno, Constituting a majority
of the eanvassing board. together with A.
T., Rogers, clerk n \ n y proceeded TO
sign the certificates of election OF the per-
sons receiving the highest number OF votes.
for their respective offices, 90 set forth in
the abstract"
spectinQ the contents of the altsrnates
writs Of mandate has been modified by tho
code of civil procedure, and the allegation
il to be stated Generally" and not spe-
officially. y y We are satisfied that
this writ complies substantially with the
statute and shat the respondents arc
thereby notified of tho wronen of which the
relator complains and the relief which he
demands.
1t is commended, however, that a disers-
tion has been vested IN the respondents
and that the writ Of mandamus cannot, for
this reason, be issued. In the recent case
of state OK rel PigRott w. board Of can
vassers of Cascade county we decided this
point. and held that the duty OF respond
ents are ministerial, under the following
sections of the statute: The canvass must
be public by opening the returns and deter
mining therefrom the vote of such county
or precinct for each person voted for, and
for and against each proposition voted upon
at such election. and declaring the
result thereof" (sts. 9 Sess. p 3Ol. Sect.
~ "In canvassing the returns Of the sew
~.,l v-nnivcko In %ho rounfv hv thu Oourtv
Canvassing Board, no returns shall be re-
jected If 1t can be readily ascertainod there
from the number of legal votes cast for each
person named therein" (Sts. 2 Ssss. p 301,
Scot. By The clerks shall set down In their
poll books the names of every person voted
such person received suoh votes. and the
number he did receive, the number being
expressed at full length, such entry to be
made as near as circumstances will admit.
in the following form" Comp: SITS. 6
Div. Sect. 1030.) One of the poll books OF
the precinct is comprised in the returns.
Comp. SITS. 5 Div, Sect. 1031.)
Then the court quotes the opinion of JUS
tice Knowles, in his concurrinR opinion in
Chumasero vs.. Potts, 2 Mont. 270, and then
save We b.v. no hesitation in holding that III.
foregoing afidavits were received by the re-
spondents without legal authority, and the
exclusion OF the returns from said precinct
upon this ground was invalid. \ \ y =
The %relators' demurrer and motion for a
peremptory writ ia next reviewed, the court
stating that IL was obliged to review that
portion OF the answer. which says ''that
there WAS returned with said pretended re-.
turns, and part thereof, q list of the per.
sons registered at said Box Elder precinct
No. 18." This allegation is contradicted by
all the witnesses, including one of the re-
spondents, who verified the answer. The
vote from said precinct was canvsssed and
then rejected without an examination being
made of said list. Ii Ia commended by re-
spondents that the surrendered certiioatst
should have been forwarded to the county
clerk by the judge of said election precinct
Conoeding that this contention is correct
although the statue is not perspicuous upor
this point. IL was the plain duty of the
board of cRnvassers. under the statue supra
to procure the check lists and such certin-
Gates. before the roturns were rejeotad
What then appears upon the face OF thsss
returns which the respondents should
have before thsm? The following table
shows the names of the electors upon the
voting lists and check lists and surrendered
certificates of the Box Elder precinct. Here
followed a list OF the alleged sixteen fraud.
ulent voters as they appeared upon the lisa
Of voters and the check lists. she only diff.
ference being in the spelling of the name
Trottier, it appearing Trottier on the list O.
voters and Trochet on the check liats.
AZ sAo oOHlP0IAhoN Oh GnoSo names. V0(
board OF canvassers must recognize som,
presumptions of law and fact, to.wit: Tia,
the judges and clerks of the Box Elder pre-
cinct performed their sworn duty, and per.
mitted nc person to vote at this election
who are not legal voters; and that under the
laws of this state. the names of such voteri
must be found upon the check list
Of the precinct or the SURRENDERED
certificates. II is established by the checl
lists that there were thereon the names Of
forty-six voters; that Ave of this number
failed to vote; that five ~electorl
voted upon county registry certificates; and
that the voting list contains the names OF
forty-six voters. The spelling of the name,
of the voters, by the clerks, in the pol
books. ts unimportant if the officers OF the
precinct are satisfied concerning their iden
tity. Thu statue provides: "Whsn the
Judges of election shall have good reason te
believe. or when they shall be informed b,
a qualified %eleotor, that the person offerins
to vote 10 not the person who so registered
in that name. the vote of such person shall
not be received until he shall have proved
his identity as the person who was regis.
tered in that name" (Sts. 16 Sess. p. 1872,
Bee. 14.) Under our mode of conducting
elections the mis.spellinR of names by thu