The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1893-01-01
IN THE BOX ELDER CASE
Ruling Of The Supreme Court In The
Iindimus Proceedings
DISSENTING OPINION
Law Relating to the Powers Of
Canvassing Boards-The Views
OF Justice De-
Witt.
Special Dispatch to the standard.

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HELENA, Dec. 3i.-The written opinions |
Of the supreme court In the frat man.
damus proceeding Of tho Box Elder case
were handed down to-day. Blake. chief
Justice, and Harwood, justice, concur In
the opinion that the court had right to
issue the mandamus when tho court was
out of session. De Witt, Justice, dissents.
An abstract Of the first opinion reads as
follows: at appears from the record Of
the proceedings that the said board OF
canvassers after the filing of the protest
Of said Hamilton and said afildavits, and
the argument Of the counsel. decided to
strike out and not canvass tho returns
from said precinct; that the mem-
bers signed the abstract Of election
returns which was made out in accord
ance with this decision; that II was de-
clared that the persons named In said alb
stract who received the highest number of
votes were duly elected, and that said Mi
mar and Dunno. constituting n ma jority Of
the canvassine board. acted. together with
A. Z. Rogers. clerk. II is contcndci, how.
ever. that discretion has been vested In
the respondents, and that tho writ OF
mandamus cannot for this reason be Is
sued. In the recent case of state ex rel.
Pigott vs.. tho board Of canvassers of Cas-
cade county. We decided this point. aud
held TINT the duties OF the respondents
are ministerial"
In referring to tho check list. documents,
etc., the court says: "What should have
been the legitimate conclusion of the cam
wasting board from these documents?
There 10 only one name upon the check
list resembling, respectively. Henry +.
Schwartx, Henry Brough or ]. b. Moture.
The surnames of the family named
Trochet or Trowtcher or Trottier, with
their Christian names, and initial letter OF
John B., William, Antoine, Andre. John,
Alex and Ermine, which are given in the
poll book and check list is circumstance
to be remembered in trying 10 reach .
satisfactory determination. There is no
foundation for tho deduction pleaded In
the answer that there werc upon the list
of voters the names of I6 or even one per
son who had no right to vote at Box Elder
precinct"
An abstract OF the dissenting opinion
.resds: "l ani of the opinion that one JUS
ticc, In vacation had no authority to order
the writ issued. The majority Of the court
held that the writ was properly issued.
That point being decided and being now
tho Law OF this court, como TO the de-
murrer TO the answer and the accompany
ing motion for the peromptory writ forth
with. That demurrer and that motion
should have been sustained. The result
OF these views Is, Of course, that am OF
the opinion that the peremptory writ
should have been issued without going
further In the hearing than ovcrruling the
demurrer TO the answer"
Coming down to the Box Elder situa-
iion, Il reads: ~ consider il to be the
fact that these 10 persons did not hero ap-
pear. SO far, then. II appears that they
had no right TO vote. But had they the
right 10 vote in any other manner IL they
were not on tho registration list OF tho
precinct and were not among the names
on the surrendered certificates which had
come into the hands OF the registry agent !?
''Section II Of the registration law
answers this inquiry. II provides that q
registered voter may have his name taken
of the official registry and have issued to
him state registration certificate. Upon
this state certificate he may bo registered
In another election district. II no docs
not 80 reregister. then upon certain condi-
tions and showing. ms set out In section II /.
| TO the judges Of election on election day,
he ,nny vote upon his state certificate
without registration. This state
certificate upon which he votes Il TO be
surrendered. II is not provided that this
surrendered certificate shall he forwarded
TO the canvassing board, or be part of
the election returns. ISections 10 aud II.
| Therefore. tho is persons named In the
respondents answer could have voted on
the state certificates under the provisions
of section n. IL they voted on state Ger.
tiflcates the following facts must he no
ticcd: Their names would not ap-
pear upon the registration list OF
any other district In Chot. au
county or elsewhere. because tho name
must have been stricken of in order to oh
tain the state certificate. Again their
names would not appear upon the sur,
rendered certificates which may have
tome into the possession of tho registry
agent, SO by an examination Of neither
the registration list nor the surrendered
certificates required TO he returned to the
cAnvassing board, would IL appear to the
canyassinR hoard that such persons wcre
not entitled to vote? Whereas the fact Is
they would be entitled to vote upon their
,tate certificates surrendered ON election
lay, and not to the election agent
" provided In section 10, which
! tate certificates II no, provided shall bc
sont to the canvassing board or be part of
; he returns. Therefore IL did not ap
,ear by those papers that are made part
W the returns, that these IL persons ~ers
lot entitled TO vote, and for all that ap
ears on the returns they were as fully en-
, | tiled 10 vote as any person on the regis
tation list"
He then recommends that tho laws bt
b amended that surrendered state Ger
tncaics voted on and surrendered at ihs
; tine OF voting. shall be sent into the can
Assing boards as part Of the returns.
i. FIXING FOR THE RECOUNT.
Aoseau County's Cnnyassing Board q
Work.