The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-05-20
THE ELECTION CONTESTS
Judge Du Bose Renders q Decis-
ion in the Neihart Case.
CONTEST IS DISMISSED
The Court Holds That David Sweeney
Wa q Tax Paying Freehoider
Within the Meaning OF
the Statutes.

Great Falls. May 1s.-The Neihart
contest cases are at an end so far as the
courts Of this county are concerned, and
1t Is thought they will not be carried any
higher. This afternoon Judge Du Bose
handed down the following written opin-
ion In the case of Isaac Mayer VS.. David
sweeney. the mayoralty case. and this
opinion will. Of course. govern the other
cases. As this opinion is one which set
ties points Of law not hitherto raised. it
is of importance to the state. 1t reads
as follows:
0 April 4, 1898. ar election was held
in the town of Neihart for mayor and
aldermen; the contestee, David Sween-
ey. received the highest number of votes.
Isaac Mayer, an e~lector, brings this on
test for the purpose Of declaring the Of
nee vacant, alleging that David Sween-
ey was not a ~taxpaying freeholder with
in the limits Of the said town at the
time OF the election, and therefore was
ineligible to the office.
There are no disputed facts in the
case. 1t Is admitted hat on the 10th
day Of March the contestee, David
Sweeney, was a freeholder and a tax
aye on personal property in the SAID
town, but prior to the LIST day of March
he was not a freeholder. but had paid
~taxes the year preceding upon personal
property within the limits of the said
town. This being the case, the only
question for he court to decide is the
rightful construction of section 4749 of
the political code. This section Is as fol-
lows:
mo person shall be eligible to the
office of mayor unless he shall be at
least 20 years old and a t~axpaying free
holder within The limits CT the city, and
a resident of the sisue for at least three
years, and a resilient of the city for
which he nay re ~elec.etr mayor two
years mex preceding his election to said
office, and shall lresile in tie city or town
for which he shall oe eicc &C mayor du--
ing his term of Office
The contestants counsel maintained
that the phrase in section 4749. A tax
paying f~reeholder.' means that the party
elected mayor must be a freeholder and
a payer of taxes upon that freehold, and
consequently, as the real estate Is as
sessed to the party owning 1t on the LIST
day of March, and the contestee's free
hold not having been acquired until the
18th day of March. he is not subject TO
taxation upon that property, and that
he never paid taxes upon 1t prior to
that time. The contestee claims hat if
he Is a freeholder at the time Of the
election and has paid taxes n is still
subject to x upon property, whether
real or personal, he is qualified undo
section 4749.
"'The counsel for contestant. in their
brief, have, with avidity, reminded the
court that the court suggests during the
course of the argument that, If the legis-
lature had intended to make the mean
ing OF the statute as commended for by
the contestee's counsel, II would not
nave used the phrase. 'taxpaying free
holder but would have said taxpayer
and freeholder.' The court will remind
the counse for contestant that during
the course of argument trial judges
very frequently give utterance to sug-
gestions that at the time seem fraught
with so much erudition and ~profundity
that Immediately that mighy metaphy-
steal division of the ego and the non-ego
arises before his eyes n to him the
ego seems by far the larger part of that
grand divtsi u, and this state of ecstasy
continues Until the JUICE begins to put
his reasoni ig In cold ty pc; then 1t is
that he ,~ecogrizes the force of the old
adage that Silence is golden
The court has been unable. as the
counsel was. after diligent research. to
find any judicial Interpretation Of the
phrase. 'taxpaying freeholder,' but as
the court Is Of the opinion that IL the
legislature had substituted the express
sion. 'taxpaying f~reeholder,' 1t would
have added nothing to the clearness Of
the section and would have made the
English only a little more clumsy than
1t is now. The counsel for the contest
ant must admit that the expression,
'taxpaying freeholder.' may either mean
a freeholder who pay taxes upon real
estate or freeholder who pays taxes on
any kind of property. This language
surely is subject to both these construc-
tions. II the legislature had intended to
limit this section to one who paid taxes
on the freehold. as contended for by the
counsel for the contestant, then il GER
tainly would have used some such ex-
preston as a freehold taxpayer. and not
an expression which means a taxpayer
on any kind Of property.
THE court being Of h opinion that
the statute cannot be limited to the mar
row, erroneous construction given to II
by the contestants counsel, but that 1t
must include two classes Of taxpayers,
does not believe that 1t has the right to
legislate and limit its meaning to one
class only. 1t is therefore ordered that
the contest is dismissed at the cost of
the contestant"