The Helena independent., 1893-09-06
No RULES LAID DOWN.
III. sups:ms Court Makes an I'm.
porian.' Decision on the =
4 Ballot Law. ri i
4 Convention Can Delegate ,
COMMITTEES to Fill Vacancies
on . Ticket.
The Case se Pigott Against Bsntsn De-
eidsd In Favor Of the Lastss-
Other Dscislons.

OsheP OscSslons.
The supreme court ysstsrday handed
down eight opinions, and on three Of them
the court was not unanimous, Justice De-
Witt dissentiaa in two and Justice Has-
wood In the othsr. TIE opinisn Of most
general interest was tkaA Of ths atats Of
Montana sx rsl. W. +. PiRotA Is!ator. YER
sus Charles H. Benton. respondent. Pigott
and Benton were candidates for judge In
Cascade eouaty last year. she former on The
democratic ticket and ths latter on the
republican and peoples tickets. Plaott
got 1.848 votes and Benton 1853, Of which
1.l68 we're cast TO. him ~ republican and
290 ~ lsmoo A. Pikott. claims that ths
psopls's party vote cast for Benton was
illegal. because be was not nominated BY
that party. II ssons that the peoples
party convention passed 4 vsts Of
sonAdsnee In Judge Benton, made no
nsmination for shs once. and empowered
the executive committee to 1lll vacancies.
Tho executive committee flied with tho
county. clerk . certificate that they had
Allied ~ vacancy BY nominating Benton.
Only Swo points are involved In the case.
The hrst 10 whether the Law allowed polit-
ioal convention 10 empower committee to
make nomination which the convention
had left blank; and whether the rsopls's
party convention did this and whsthsr the
committee made the nomination. On this
point the majority Of ths court. Chief Jus
tics Psmbsston and Associate Justice De-
Witt say: "Supposs Z political ooavsn-
tion met and there was before IL the nomi.
nation Of candidate for district judge. The
osnvsAtion appoints . committee 10 nsks
the nomination. That committee Ietisss.
ItFstssns 10 the convention and reports that
itdesirss 10 nominate ChnA H. Benton. The
convention receives tho report and adopts
certainly bs the act Of the convention. and
the nomination would be the nomination
Of the convention. Such suppositious
oass differs from the facts In The cass BE-
fois us In only one particular. Instead of
The oonvsntion rs.i'yins shs act Of ths
actual case before %. rasifes ths act Of the
committee In advance and does SO ex-
psessly. II eives the committee powor 10
al oil vacancies that now exist. or that
nay hereafter oceur.' Tho Vacancy In the
position Of candidate for district judge
did now cxist' At tho time Of passing tho
resolution empowering the committee to
make the nomination. For the convention
had not named and did not name a ps son
for district judge except as 1t delegated
gow:. to asms one 70 the committee"
Montana ballot law does not at
tempt to prescribe sules OF order
aud procedure for political conventions.
II II did 1t would be decidedly large un-
dsrtakinR. II Is . matter OF common
knowledge that political conventions fre-
Qusntly operate just as this convention did;
that Il may not seem expedient at ths ses-
sion of the convention to make one or more
nominations in the list OF ofIo.s to bs
hllsd. The convention thersfofe leaves
that duty TO committee selected by the
convention. the com mmjttss having the trust
and confidence OF the convention. and the
convention the trust and confidence of the
party who elected It," Tho judges conclude
that tho people'a party convention gave the
committee power TO make nomination
for district judge. and that the committee
nominated Judge Benton.
The second point is whether it appeared
prima facie that Benton was nominated by
the peoples party, and whether the evi-
dence tended to Trove that he was not.
The opinion SAYS TINT the name Of Charles
H. Benton appea ed on the cficiAl ballot a.
the candidate Of the peoples pnrty. because
a certificate OF nomination. signed BY the
chairman and secretary OF the executive
committee OF tho peoples party.Swas tiled
with tho county clerk. ut 10 held" snys
is prima facie evidence of tho election OF
tfe person to whom the certificate is issued.
BY analogy We are Of opinion that IL should
be held that certificate of nomination,
regular upon its face. and flnd with tho
proper Office, 10 prmA facie evidence of the
nomination Of tie pc son 30 certified" As
Benton was thus nominated. In the opinion
Of the majority of tho con I. the case of
Pieott falls to the ground. The was no
evidence to show that Benton was not
dIssente1 taking the ground that Benton
was not nominated by the pco les party
Another opinion was that in the oass Of
Joseph Ho skv W. Patrick Moran. Tho
ease involves twentv-one feet o. ground on
lower Main street and brings up tho old
Wheaton survey and the MeIntyre survey.
Horsky won tho case in tho district court Of
Lewis and Ola ko on the 'pleadinGs only
and not on the merita OF the controversy.
Chief Justice Pemberton and Associate
Justice Harwood reverse tho Judgment Of
tho lower court. Justice Dewitt disssntsd.
The cnso WI now be tried on its merits.
and Whichever side wins an appeal will
likely -hetaksn to the supreme court. whore
some f1nni ruling will he made on the ques-
ton of the disposition of land about which
tho two su veys disagree.
The other decisions of tho court we're "a
follows:
H. G. Joraenson. plaintiff and appellant.
Va. Butte and Montana Commercial COM
pany. defendant ana respondent. Any cal
from district court of CAscade. JorRenson
had bis leg brokon while working for the
company nt Great Falls. The company
hired phyAicians to trent him, and 10 oIaima
that want OF skill made it necsssary TO am.
patats his log. The lower court ordered ths
Jury 10 fnd for the compan, on aoooant OF
lack of proof. Judgment af1rmsd.
The state OF Montana. ex rel, Evalsns
Newell, telator. ". George r. Newell. Al
peal from district coutt of GAllatin. The
lower court. by habsns corpus. awarded
Evaienn Newell tho custody OF her infant
child, but allowed her husbnnd, who Va,
once week. The costs vera taxed aRains,
the husband. From both hndings he Np
pea'ed. The lower court 10 sustained.
lhs State OF Montana az Fl Euasns
6imasd, relate ". the Fourt judicial dis
triot cou,t (Missoula). Application for a
writ OF osrtiorari. Smard was njoinet
from quitting hay from certain lands ir
Missoula county, and afterwards hnd com,
onsslss cut II. Tho lower court finod hinl
800 for contempt. The sup ONE court sus.
tains the lower court.
E. l.. Bonner, plaintiff and appellant. "
Michael Mtnnear et Al. defendants nm
respondents. Appeal I om the district
court of Door Lodge. II was decided IN
the lower court that . homestead could no
be made aubi iect TO n lion on Rccount nj