The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-10-03
Secretary Rotwltt Is Upheld In
Following tho Law or
1901.
Justice IIhTwood Thinks tho Court wasn't
Called on 10 Take Up the Matter
Al All.

stead OF preparing separate ballots on the
capital question, as prOs5fibel by the act
OF 1891, md az WAS done in ,hs election OF
1892. and as the secretary proposes doing
this time. The decision OF ths court, as
prepared by Assoois,s Justice De Witt and
oonourred IN by Ohisf Justlos Psmbsrton.
maintains that the ssorstay OF state was
right In following the Law Of 1891 and pre-
pairing separate ballots. Associate Justice
HaIwood, In q separate opinion. holds thai
the proceeding should hayo been dismissed
without deciding any Of the questions pre-
sented, az 10 ogsus tho way to raise disputes
with public ofrcsrs as 10 the performance
of duties which IL was never their iutsntioa
30 neglect; and such interference OF courts
with tho performance OF ordinary duties OF
the executive departments, he says, would
be productive Of nothinq but mischief
The opinion OF the majority OF the COURT
however. upholdinR the course OF tho SEQ
resnry Of state. sots st rests any question
as TO the legality OF the capital election of
1892. and leaves the Issue to bs decided next
month BY the same style Of ballot that was
used iwo years ago. The secretary of state
will at once publish the necessary notice In
ssoh county seat In the stats. and In ao-
cordsncs With the decision OF the majority
OF the supreme court. print and disiributs
separate ballots on th, capital question for
use In the coming election.
The opinion OF ths majority Of the court
quotes the provision OF tho consultation 70.
latine to the election for the capital looa-
tion. The provisions Of tho kct OF 1889 10
was held. msdo ID the duty OF the secretary
Of state, not lass than thirty days before
the election this year. TO certify 10 tbs dli-
ferent county elsrks the question OF choice
between Helena and Anaconda for the per-
manent seat OF government; and Ii Was
further held that the olo he must include
that question In the publication whioh they
make. and TO include ID In tho printed OIL
ciHl ballot. The petitioner further helJ
that ballots other than thoae rinted by
the county clerks should not. under the act
of 1889. be cast or counted; and that the
law OF 1891, being special, was unoonstitu.
tionhl. The secretary OF state. in his
anBwer, admitted that be did not intend 10
follow the rot OF 1889, but would abide by
the PROVISIONS OF the act of 1891. The
court then takss up the question as to
whether il Ia duty imposed ON tue sscrs-
tary to perform the acts required by the
law OF 1889. The court saYs:
'The general bAllot law OF 1889 popularity
known ns the Australian ballos law. was a
pari OF the territorial laws al tho time OF
the adoption of the constitution. whom 1t
became part of the law Of the state. When
the second legislative assembly INST In 1891,
they found that In the following year. 1892.
the question OF the location OF ths stats cap
ital was. by the constitution, to be subm tie i
To 4 la a. mot AL hG A "A
penr that tho legislature considered that
the general ballot Law of 1889 was not. in all
its provisions, awholly suitable method for
submitting the qneition of the capital looa-
tiOn. 1hoy tho efors enacted tins Jaw OF
Mar ch G. 1891 This Law D divided q method
for submitting the question to the elsciol 9
which followed the general spirit nnd
sye,em of tho general ballot Law.
ID differs from tbs law OF 1889 in SONS OF
ito dstaia. II required the secretary of
state TO publish th1 notices OF election and
10 prep5re. print and distribulo to this
county clerks tho ballots ugOn The capital
question; whereas, the law OF 1859 re-
quired thRt tho secretary Of stats should
certify all questions to no submitted 10 tho
people, TO the clerk OF each county, whose
duty Is was TO include such questions in tho
publication he made. The writ OF mazda
mus may DO issued BY this court 30 the
secretary of stnte to compel the perform
Rnoe OF an act which the Law especially en-
joins as duty resulting fiom his office.
The general ballot law of 1889 cnjolnB upon
tho secretary, Rs a duty resulting from his
Office shat he certify to the county clerksa
question 10 be submitted 20 tho peo 9le OF
IBs state, aud that he do certain othsr
things. He refuses 20 perform those al
legged duties, because he oontsnds that
these certain provisions OF the law OF 1889
are In this oiHe superseded bF the law OF
1891, and that the ieforo the said certain
duties prescribed by the law OF 1889 are not
at this time duties eniolnpd upon him. but
that ho must, unler the law OF 1891, per-
form other aud different duties ipcon-
aistenJ with tho provisions OF tho Law Of
1889.
I'VE know OF no way 10 dstermine the
question except 10 inquire wheihor the
prov isous OF tho act OF 1889 superseded,
M TO this capital election. by the law OF
1891. ln the case ~ bar va are clearly OF
opinion that the secretary OF state Ia cor
eot In o5sylnR tho provisions OF the Law OF
1891 and iglofina those OF lhs law OF 1882,
who're the two arc 10 conniCt. Hs 10 per-
forming his duty. and Ia nos refusing To
orfOim any dutY eniolned By tho law Of
1859 That 10 tho question raised upon
considering whether tho alternative writ
HuhlA uo mhAn Ahu btoAuAo
the secretary Of state IL not 30 rsfuaing 10
perform dnty enioinel by law, II will he
ordered that this alternative writ OF man
damus be- dismisSed. I"
Continuing the auy yrems court says there
has come into the case n suggsslion AZ to
whether this IL propsl case 10 ho dec ided "A
10y tho court Decisions are qloted 10 show
that mandamuAes and iujunotions have
been issued ~ compel OF restrain jndioial
officers In ths performances OF their duties.
at may bs frankly stated saya the court.
shat II was not 40 impnrtAn, how this case
was decided, Ms thhi IL DO decided
but We do not think ihis Ia
n reaaou for our not dOolding IL al all. We
think thsro IL sufficient thorsin TO sntitlo
both pRI ties TO n decision, No harm would
bo done in this case " W. expressed no
opinion ~ 20 vhethoT tho duty is on nioinel
upon tue usorstarT to follow tue provisions
Of the law OF 1850. liui eanos m ight rssdily
aIiso whore great harm would occur " the
cont we're 10 stand idly by aud re.usa
decision 10 an applleaa, for mandAmus.
w.o sought 10 compel an ofiiosT w do a
ministerial no, and 10 compel him h tho
only tine shsn the doing would be otrso-
uvc."
li9fsrriug 70 the act OF the Legislature 40
10 tLe capital ballot, the oourl aAyE "lho
operation Of the aol 10 not upon any pariio.
ulaT person or ofllocr, nor in any certain
locality o. localities of the atate, IL 40
pliea TO all poiaona alike. 10 Ia moi a loual
law. II oItondp over the whole state. IL
atnllAa la AvnIV uaunAW awasy ,K.,tnaN and