Chumasero v. Potts

• Decision Date: 31 January 1875
• Citation: 2 Mont. 242
• Parties: CHUMASERO v. POTTS.
• Court: Montana Supreme Court

2 Mont. 242

CHUMASERO

v.POTTS.

Supreme Court of the Territory of Montana.

January Term, 1875.

FOUR applications for the writ of mandate were heard and determined at this term, which related to the seat of government of Montana, and contained substantially the same allegations. The pleadings in the first proceeding, that of Chumasero et al. v. Potts et al., are stated in the opinion of WADE, C. J. The other applications were filed in open court, and comprised those of Lawrence v. Hickman, Sanders v. Star and Shober v. Callaway. Hickman, the Territorial treasurer; Star, the Territorial auditor; and Callaway, the secretary and acting governor of the Territory, had their offices in Virginia city. The relators alleged that Helena was the capital of the Territory, and the chief object of these proceedings was to compel these officials to remove their offices, books and archives from Virginia city to Helena. Star answered and the other parties filed demurrers, and legal questions of a similar character were discussed by counsel in the proceedings. The demurrers were overruled, and answers were filed and the parties applied for a jury to try the issues of fact. This application was denied for the reasons which appear in the opinion of KNOWLES, J., post, 258.

An appeal was taken to the supreme court of the United States and dismissed in February, 1876, for want of jurisdiction. 92 S. C. 358.

W. F. SANDERS, CHUMASERO & CHADWICK and JOHNSTON & TOOLE, for relators.

S. WORD, J. G. SPRATT, H. F. WILLIAMS and C. W. TURNER, for Callaway and Hickman; H. N. BLAKE, for Potts and Star.

No briefs on file.

WADE, C. J.

This is an application by William Chumasero and John A. Johnston for a peremptory writ of mandate, to issue from this court against B. F. Potts, governor, J. E. Callaway, secretary, and W. F. Wheeler, marshal, of Montana Territory, to compel the performance by them of certain acts.

The petition sets forth, among other things, that the petitioners are electors of said Territory; that they reside at the town of Helena, in the county of Lewis and Clarke, and are there engaged in the practice of law; that in the course of such practice it is necessary for them to make frequent journeys to the capital of said Territory, in attendance upon the supreme court thereof, in which court they practice as attorneys and counselors at law, and which court is required to be held at the seat of government of said Territory twice in each year; that such journeys to the capital of said Territory, situate at Virginia city, are attended with great expense and inconvenience, and that as such electors and attorneys and counselors at law, they are beneficially interested in the removal of the seat of government of said Territory from the city of Virginia, in Madison county, to the town of Helena, in the county of Lewis and Clarke.

The petitioners further state, that by virtue of an act of the legislative assembly, passed upon the 11th day of February, 1874, the seat of government of said Territory was removed from Virginia city to the town of Helena, but subject to the approval thereof of a majority of the legal votes cast on that question at the first general election after the passage of such act; that upon the first Monday of August, 1874, in pursuance of said act, and the act of congress of May 26, 1864, the question of so removing the seat of government was regularly and legally submitted to the qualified electors of said Territory in the several counties thereof, and that said electors upon that day, throughout the Territory, voted upon the question of the approval or disapproval of said act of the legislative assembly according to the terms and provisions of such act.

The petitioners then state the vote of each county in the Territory upon the approval or disapproval of said act, as ascertained and counted by the county commissioners in each of said counties, in pursuance of the statutes in such case made and provided, the vote of Meagher county being by such count 561 votes for the approval of the act, and 29 votes for the disapproval thereof, and that the aggregate of such vote was for the approval of said act, 4278, and for the disapproval thereof, 3821 votes; that, by virtue of said vote and such election, the seat of government was removed from said Virginia city to the town of Helena; that the votes so cast in each of said counties were duly returned to the offices of the county clerk of the board of county commissioners for each of said counties, and that such votes were regularly opened, and an abstract thereof made, which abstracts yet remain in the offices of said county clerks; that, within thirty days after such election, it became the duty of the secretary and marshal, in the presence of the governor, to meet, and if a certified copy of the abstract of the votes of each of said counties had not been received, it became the duty of the secretary then and there to send a messenger for an abstract of such absent vote, and that, when all of the abstracts of the votes from the several counties had been received, it became the duty of the secretary and marshal, in the presence of the governor, to canvass and count said votes; that the secretary and marshal did on the 2d day of September, 1874, meet in the presence of the governor to canvass said vote, but that when they so met they did not have before them a certified copy of the vote of Meagher county, or the county of Gallatin, upon the approval or disapproval of such act; that the secretary failed and neglected to send for the abstract of the votes of said counties; that said canvassers made a canvass of the votes of all the other counties of said Territory except the vote of the counties of Meagher and Gallatin; that said canvassers had before them at said canvass, a paper which was not a certified copy of the abstract of the vote of Meagher county, and which did not have affixed thereto the seal of said county, or the signature of the clerk of the board of county commissioners, but which was false and forged, wherein the votes of Meagher county upon the approval or disapproval of said act were falsely represented to be 561 votes for the disapproval thereof and 29 votes for the approval thereof, when in fact the true vote as given at said election, and as shown by the abstract thereof made by the county commissioners, was 561 votes in approval of said act, and 29 votes in disapproval thereof, which said false and forged paper was accepted by said canvassers as the true abstract of the vote of said Meagher county, and was counted by them in said canvass, by means of which, the approval of the said Capital Law as herein set forth was not declared by said secretary and marshal, but that the said secretary did falsely and fraudulently declare as the result of said pretended canvass upon the approval or disapproval of said act, that there had been cast a majority of 152 votes for the disapproval of said act.

The petitioners further state, that the secretary and marshal have been requested, and it has been demanded of them that they make a canvass of all the votes cast at said election, including the votes of the counties of Meagher and Gallatin, but that they have refused and still do refuse so to do.

The petitioners further state, that they have no adequate remedy at law, and therefore ask of this court a peremptory writ of mandate to issue against the secretary, marshal and governor, to compel a canvass of all the votes of the Territory upon the question of the approval or disapproval of said act removing the seat of government of the Territory to the town of Helena.

To this petition the governor appears by demurrer, and says, in substance:

First. That this court has no jurisdiction to issue a writ of mandamus; in other words, that this court has no original jurisdiction.

Second. That the petitioners have not the right or capacity to bring this action or to ask for such writ.

Third. That no demand was made upon him prior to the application for the writ.

Fourth. That the court has no right or authority to in any manner control the action of the executive by mandamus.

Fifth. That the act of the legislative assembly, requiring of the governor, secretary and marshal the service of canvassing the vote of the Territory at a general election, is a requirement of said officials unknown to the Organic Act, and a violation of the provision thereof, which prohibits any Federal official from holding a Territorial office, and, therefore, that the act imposing the duty of canvassing such vote is void.

The secretary also appears by motion, and objects to the issuance of the writ for substantially the same reasons as those assigned in the demurrer of the governor.

It will be apparent to the most casual observation, that the questions raised by this demurrer and motion are of the very highest concern, and that the fate of this case, as it may affect the city of Virginia, or that of Helena, sinks into utter insignificance, when placed beside the great principles involved. We have, therefore, given the questions presented the grave and patient consideration their importance demands at our hands.

First. As to the jurisdiction of the court. It is contended, upon behalf of the respondents, that in the early days of this court, soon after its organization, and while the records and the forms of practice and procedure were in a state of chaotic uncertainty and disorderly confusion, there were two cases decided by the justices thereof, which decisions denied to the court jurisdiction in mandamus, and that these decisions are precedents and authority which should conclusively control the action of the court in the case at bar. What was determined by these cases, or how they arose, depends very much upon the recollection and memory of the pioneers of the Montana bar, as the record of the cases, if the mutilated document produced here may be called a record, does not give much...