The Helena independent., 1894-09-25
COUNTY coMMIssIoNER.

None to be Elected In the Old Counties
This Fall.
The supreme court handed down its de-
cision yesterday In the case OF the State OF
Montana. OF rel Il. g. Woods. Nicholas
Kesslsr and Sherwood Wheaton, telators.
versus John s. Tooksr. county clerk and
recol der OF Lewis and Clarke county. te-
spondsnt. Tho decision 10 by Justice WIN.
n. Dewitt and 10 ooncursd In by Chief
Justics W. Y. Pembsrton and Justioe II.
N. Harwood. Tho decision holds that the
alleged amendment to the state aonstitn-
tion 10 not constitutional and therefore
that there will 10 NO elections Of county
commissioners this fall. as the old boards
hold over. In this case ths relators asked
for a writ OF mandamus. directed TO thu
respondent, requiring him. In pursuance 10
the ballot law. 10 file In his of1oe the GER
tiheate of the relatoFs nomination for the
Office Of county commissions. Az the rs-
qusst o, the republican candidate, for
commissioners Mr.. Tookef refused 20 file
the nominations In order 10 b ing the mat
ter In the natu Q Of tost case before the
supreme eouTl
fhs case was argued and submitted
Sept. 10. The question presented TO the
supreme court was whether the constitu-
tionAl amendment proposed by tho leRsla-
tive assembly by aot approved Feb. 23. 1891,
and voted nj on by tho electors At the gsn-
eral election IN November. 1899. became
and now 10 par, OF the constitution. This
alleged amendment provided that In each
county thers shall bo elected three county
oommiasiopeis whose to- m OF otlioe shall be
four years; provided that the term OF o0loe
Of those elected 20 succeed those elected
Oct. /, 1889, shall expire on the fret Mon.
dAy OF January, 1895 and provided further
at the general election OF 1894 one commits
aioner shall be elected for term OF two
yORrs, and two commissioners for q term OF
| fout yeaTA
The constitution providea that the SCORE
tary OF stats ShAll cause the publication OF
any amendment for three months In at
least ono paper in every county OF the
state. This amendment was published bat
for two weeks onlT. TIE question tre-
sented the supreme court was whether tho
publication OF the proposed amendment for
only two weeks onuaod tho attempt 60
adopt tho umsndmont 10 bo wholly a
failure.
The opinion hold Is that such failure 10
comply with the oona,itutlodal require
msnts iuvalidaled the amendment. Judge
DsWitt Ia his opinion oltos many authors
tioa IN auppDii Of hia position. After
reviewing the maitof tho opinion hae tbo
following 10 cay 10 conclusion:
Ia ounaidslng tho provisions Of our
own consultation. and In tho llRht OF tho
deoiaions, We aro clearly OF the opinion
that che requirement. 90 publish notices OF
proposed nmon 4 dmsnt Tor th 90 montha ia
not only mnndatojy. hut that " Ia an
essential pFoyi,ion, aud that 10 must bu
oboyed. We may add futlher that II suemu
10 ns 10 be n prudent and expodient pro-
yiaion.N
Following ,hIs came citations from au i.
thofitiea upon similar mattea In otho
stsisa, all Of which agree that no nmsnd-
mont can be oalAbliehed by other than con-
etltutional requirements
The o lnion proouoda aa follow, III ons
requirement IL non.eaaVntlal, why 10 not
anoiho And who 10 10 eay what IL eaaen-
tal. and what Ia notP And by what roles
ore uuch distinctions 10 bA NADER The
Constitution itaelf does not make them.
The ffamera OF that inst umsnt made nc
diatiuo,ion in the requirements. They
made them nil mandatory; and " oonrI
commences 10 nullify theiT commando va
do not kuoW where the oooTl would 0om-