The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-10-03

hla vote Tor The eaplt,l und,r lta proysloos
There 10 no suggestion made Aa 20 why II
should DO considered a special Law, hn1
no reason 10 this effect ouours 10 ua. Az
though tbS law OF 1888 was adopted by tho
oonatitution, II was law only until changed
by future logiglation. IL was not wholly
suitable or applicabls 10 this capital slSe-
tlon. Ia thea0 details The Law OF 1891 made
some changes. 10 operates uniformly upon
all peraons who are bfought within tue re-
lationa aud circumstances provided by IA.
Tho law ia mol special and IL nol unconaii-
tntlonal."
Associate Jus'ioS Harwood. In hia sspar-
alto opinion. says tho proceeding should
have been dismissed without considering or
dseidina the questions presented, beoauge
lhozs questions were not pFopetlT before
the oouft for determination. Neither the
writ OF mandAmuanor injunction" he says,
''cnn be legally invoked 40 mn indiTsot
method Of inStTuoting or advising afiasra
OF ths executive department az 10 duties
impoasd upon them by law. and In what
manner they shall perform the same oA-
peciAlly In cases like tho one Al bar, where
IN The ofiosr asserts his Intention to per-
form the dutlsa required when the time
arrives for hia aoiion. Nor can the con-
sldoTAtion OF courts DO legally invoked 10
determine mora dlsputs raisod by an In =
diyidual with an Off 'eT nc 10 what par,iou-
lar public dutiss tho law imposes upon hia
otfice for future execution. Ths facts pre-
.ensod in this case show simply nueh a
dispute, raisinR fslgpad issue.
for the purpose Of drawing l'om this
court, II poEsiblr. an authoritative judicial
response dstsTminins y ths same, and thOre-
BY 70 instruct and diFsot tho secretary OF
state In the future performance of his
duties on the subiecs mentiousd. The
courts have uniformly tSfussd 70 entertain
and respond to that character OF issues.
whs,her sought 10 be presented BY man
damus or injunction. The writ OF man.
damus lies Ia cases (wh8ro there 10 no other
plain, speedy and adsqusts remedy "a
compel the performance of ministerial acts
snjolned upon an officer OF the Law. which
acts the proper ofiiosT refuses 10 perform.
This proceeding involvsa no such case
The secretary OF state neither refused nor
proposed 10 neglect the performance OF any
duty In the premises required OF him by
Law. az be had ascsrtainsd and understood
the Iequirsmsn,s OF Law; but on the con-
irary asserted his purpose 10 disohargs all
OF those duties at the lime and in ths man.
nsr prescribed.
''But the sntertaInmsnt and decision OF
this caae sets the precedent and estAbli.hoH
the practice for its kind In this jurisIic-
tiop. Therefore the way IL open 20 the ju-
dietary to decide disputes whieh individ-
uals may raise with public officers 90 10
their public duties prescribed by Law for
future execution. and which the officer
In no manner proposes to neglect;
bat In order TO inatruo, thsm or 10 obtain a
judicial holding In advance Of their hstion.
and Ia an sx-parte p ooesdiua that the
course about TO bs rursued Ia correct be-
yond all future question. lot the rerEon 40
IA In IN h. M.
poses TO do In respect TO this subject and
dispute the correctness OF his view, and de :
msud that hs do otherwis-. however un-
founded. II would apply 20 tax leviss an d
sales, in quoting titlos. etc. tho question as
10 Issuing OF bonds, and OF state Ian de,
elections etc, together with q multituie OF
other osses wherein officers Of the sIscutivs
de- srtment must perform public duties.
Such actions will be broug ght for the pur-
pose Of distraction and reposs. but in my
opinion such interference OF courts with
the performances Of the oydintry duties oi
The executive departments would bo pro-
ductivs Of nothing but mischief"