The Neihart herald. [volume] (Neihart, Mont.) 1890-1901, 1898-05-28
CONTEST DISMISSED.
District Court Decision in the Eleo-
tion Contest at Eeihart.
Amy Old Yellow Dog Cannot Become
an Alderman.

contest over the spring election at
Neihart, will interest our readers, as
it is valuable for future reference.
1t appears that this was as initial
case to test the significance of a law
which has been little understood.
The opinion finds that "taxpaying
freeholder' in the statutes means
holder of real estate, who pays taxes
upon any kind of property The
only case tried was that of Isaac
VS.. David Sweeney, the other two,
r. G.. Vaughan vs.. John l.. Walker,
ir., and Richard Bennett vs.. Geo. w.
Arthur, being similar, we're likewise
dismissed. The text Of the opinion
is as follows:
"On April 4, 1893, an election was
held in the town of Neihart for may
or and aldermen; the contestee,
David Sweeney, received the high
est number of votes. Isaac Mayer,
an elector, brings this contest for
the purpose of declaring the office
vacant, alleging that David Sween-
ey was not tax paying freeholder
within the limits of the said town at
the time Of the election, and there
fore was ineligible to the office.
"There are no disputed facts in
the case. 1t is admitted that on the
10Th day of March the contestee,
David Sweeney, was freeholdel
and taxpayer on personal property
in the said town, but prior to the
first day of March he was not free
holder, but had paid taxes the yeal
preceding upon personal property
within the limits Of the said town
This being the case, the only ques
ton for the court to decide is the
rightful constructionlof section 4, ~!
of the Political code. This section
is as follows:
sssNo person shall .1se- eligible t
the office of mayor unless h'
shall be at least twenty-five year:
old and tax-paying freeholder
within the limits of the city, and /
resident of the state for at leas
three years, and resident of tht
city for which he may be elected
mayor, two years next preceding hi
election to said Office, and shall re
side in the city or town for which HI
shall be elected mayor, during hi
term of office
"The contestants counsel main
tain that the phrase in section 4,79-
"a taxpaying freeholder' means tha
the party elected mayor must be
free-holder and payer of taxes up
on the free hold and is consequently
as the real estate is assessed to TIN
party owning it on the first day o
March, and the contestee's freeholc
not having been acquired until tn
10Th day of March, he is not subiec
to taxation upon that property, an
that he never paid taxes upon j
prior to that time. The conteste
claims that, if he is ee-hoder a
the time of the election and has pal,
taxes and is still subject to take
upon property, whether real or per
sonal, he is qualified under sectioI
4,749.
"The court has been unable, a
the counsel was, after diligent re
search, to find any judicial interpre
tation of the phrase 'taxpaying free
holder, but the court is of the opin
ion that if the legislature had sub
stituted the expression -holde
and taxpayer in place of the ex
preston 'tax-paying free-holder,'
would have added nothing to tn
clearness of the section and woul
have made the English only a littl
more clumsy than it is now Th
counsel for the contestant must ad
nit that the expression 'tax-payinI
free-holder' may either mean a free
holder who pays taxes upon real es
tate or free holder who pays take
on any kind of property. This lang
uage is surely subject to both thes
constructions. If the legislator
had intended to limit this section t
one who paid taxes on the free-holC
as contended by the counsel for tn
! contestant, then it certainly woul
have used some such expression as
free hold taxpayer and not an es
preston which means taxpayer o
any kind of property,
''The court being of the opinio
, that the statute cannot be limited
the narrow, erroneous constructio