The Billings gazette. [volume] (Billings, Mont.) 1896-1919, 1902-12-30
Afternoon Session.

i
Sidney F. Morse, one of the candi-
dates voted for at said election, re-
spectfully protests against your hon
ors counting, casting up or including
in your canvass of the returns of said
election the votes and returns receiv-
ed from Junction precinct No. /, for
the reason that said returns show
upon their face that one W. e. Tiffany,
who voted at said precinct. o~i whose
name appears on tho poll book of said
election as voter thereat, was not
a registered voter or competent
elector at said election for the reason
that his name does not appear upon
the official register list Of said pre-
cinct or district in which said pre-
cilct is situated.
ut further appearing that protest
was duly made, by one Of the judges of
said election, which said protest was
duly made, signed and returned to
the county clerk of Yellowstone coun-
ty.
''And for the further reason that it
appears from all of the returns OF
said returns of said precincts OF said
county that the vote cast by said w.
E. Tiffany as aforesaid, if cast for
Chauncey G. Bever, resulted in the
election of said Bever, whose majority,
81,
one.
Sidney f. Morse further protests
that the counting of the vote of the
said w. E. Tiffany results in the cleo
ton Of said Bever, whereas if the said
vote were rejected as illegal it might
and probably would result in a tie
vote cast at said election for repre-
sentative.
"Said Sidney r. Morse further pro-
tests that the election held in said
precinct is absolutely void by reason
of receiving the vote Of said w. E.
Tiffany,
SIDNEY F. MORSE"
After reading the protest Mr..
Smith began to read from various au-
thorities in support of his contention
earlier in the day that because of the
alleged illegal vote by Tiffany it be-
came the duty of the board to throw
! out the precinct protested. He said
that under the law it was impossible
to tell how Tiffany had voted, conse-
Quently it would be useless to think
of merely throwing out the fraudulent
vote of Tiffany. The authorities, he
held, were agreed that where it could
be shown that fraudulent votes ma
terially affected the majorities of can
didates by changing the results such
votes should be thrown out. In this
instance one vote did so materially
affect the result of the election and
the manifest duty of the board was
to throw out the entire precinct.
Mr.. Hathhorn, on behalf of the pro-
testee, argued that the board had no
judicial authority, it's duty being mere
ly ministerial, and therefore could not
throw out the protested precinct. The
boards authority extended no further
tha nto merely tabulate the returns
Of the various judges of election as
submitted by them and to ascertain If
the footings were correct. 1t was be-
yond the boards authority to go
beyond the returns and decide wheth-
er the vote cast at any precinct was
Illegal.
I In support of his argument Mr..
Hathhorn read from the opinion Of
the supreme court in case that oc-
Cured in Choteau county, where the
returning board of that county had
refused to canvass the vote of a
precinct on the ground that affidavits
submitted showed that number of
persons had fraudulently voted there.
Ii the protestant felt he had been
wronged his remedy was in another
direction. Other decisions in cases
analogous were read by Mr.. Hath
hornto further strengthen his position
that the duties of the board of can
vassers were only ministerial, the
matter of judicial powers being dele
gated to the courts, who alone were
qualified to pass upon the matter of
alleged frauds practiced at the polls.
Mr.: Smith, while not disputing that
the powers of the board were limited
to the discharge of purely ministerial
duties, held that evidence had been
brought to show that the election
laws of the state had been violated in
that a vote had been received by the
judges of the protested precinct that
should not have been cast, as the man
offering it had failed to comply with
the law as regards registration. 1t