The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1903-12-01
SPECIAL TO THE INTER MOUNTAIN.

SPECIAL TO THE INTER MOUNTAIN.
Helena, Dec. I.--Following is the mes
sage of Governor Tooe to the legislature
Executive Office,
Helena, Montana, December I, 1909
To the Senate and House of Representatives
of the Eighth Legislative Assembly in
Extraordinary Session:
Tho purposes for which and the crcum-
stances under which you are assembled are set
forth in the proclamation eonvcning you in
extraordinary session.
Much stress has been laid upon what is
claimed TO be an imperiecton OF Our laws IN
this, that provision is made for disquaiy-
ing district judge where bias or prejudice is
shown.
This omission was sought to be corrected 1T
the seventh legislative session by the passage
OF BILL which, for reasons then stated, was
vetoed.
At the eighth regular session the subject
again received the attention Of the Legislature,
and bill, constructed on different lines, but
designed to accomplish the same result, was
passed, but it was found upon a test case that
it contravcned the constitution in several re-
specs, and for these reasons failed to become
operative.
! am not advised, except in general way,
as to what will be proposed IN that behalf at
this session, nor am l. in view OF the objec.
tions heretofore urged and sustained, prepared
to make any recommendations concerning the
same If your knowledge of the fundamental
law and the esgencies OF the hour fail to point
the way, ] must assume that those who by
petitions and otherwise have been nsistcnt
upon calling you together will find and iormu-
late an adequate remedy; but whatever form It
takes, it must be remembered that you are
lcgslating for the future and for the whole
state, and that your task is not without difii.
cuies, whether considered with reference to
constitutional restraints public policy, or prac.
teal utility.
Warning as to Text.
II change of Judge be suggested it must
not be forgotten that the supreme court ac-
cording to its decision in Ryan versus
Weston, cannot make the appointment for the
reason that it is outside Of its constitutional
powers.
1t would also seem clear under the decision
referred to, that wherever the power of APP
pointment is lodged, no limitation can be inl-
posed by legislation which would exclude the
right to appoint any Judge, notwithstanding he
might reside within the same district the
disqualified judge.
The SITUATION therefore calls for the exercise
OF consummate skill and judgment on your
part.
IL is therefore incumbent upon you to sec to
it that every paragraph, provision and page OF
any measure proposed along these lines so
plain and palpabe as to avoid the suggestion
suspicion OF being disingenuous, dssem-
bling or deceptive, thus avoiding, if possible,
the necessity of judicial construction in case
Of its final passage.
While isolated and individual cases may
serve to show the defect, if any, of existing
laws and the necessity for corrective lcgisa-
tion, we should be mindful Of the fact that
eye single to duty to the state makes it
imperative that we avoid even the semblance
OF partisanship or special legislation which are
forbidden alike by public policy and the con
stituton.
Argues on Practice Act
Concerning the second proposition men.
toned in the proclamation, to.wt: The
power Of the supreme court to rev"'. ne evil
dencc on appeal in equity cases. ii woulu seem
to that if provision is made which, in the
opinion OF the legislature, is designed to make
more certain fair trial before fair Judge
| the reason for a review of the evidence by the
| supreme court in equity cases has largely
| failed.
Such evidel. when it reaches the supreme
| court is in narrative form only. It is not i'm.
pressed by the presence of the witnesses and
| their manner OF testifying.
Every must know there is difference
| in the effect of the same words when deliy.
| cred in open court from the mouth OF wit
| ness and when read from manuscript in mar.
| rative form. They may seem worthy OF credit
! in the one case, and positively unworthy of
! all credit in the other.
Who can be unmndful OF the influence OF
the manner and carriage of witness on the
| stand?
There are many things aside from the literal
| import of the words uttered by the witness
! while testifying, which the value of his
| evidence depends. These it is impossible to
| transfer 10 paper.
| Taken in the aggregate they constitute a
vast moral power In ecitng the truth, all of
| which is lost when read in another court or
| reproduced in the form OF narration.
1t would seem that the judge who tried the
| case, looked upon the witness, saw and heard
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