State v. Benton
| Decision Date | 05 September 1893 |
| Citation | 34 P. 301,13 Mont. 306 |
| Parties | STATE ex rel. PIGOTT v. BENTON. |
| Court | Montana Supreme Court |
Appeal from district court, Cascade county; Frank K. Armstrong Judge.
Statement of the case by the justice delivering the opinion:
This action is one for usurpation of office. The relator alleges and proves facts which he claims are sufficient for a judgment, to the effect that respondent is not entitled to the office of judge of the eighth judicial district of this state, and that relator is entitled to said office, and that he be put into possession of the same. Code Civil Proc. c. 5 tit. 10, §§ 410-417. At the general election in November 1892, the relator and the respondent were candidates, and received votes, for the office of district judge. The relator was regularly nominated for the office by the Democratic convention. His nomination was duly certified to the county clerk, and his name properly placed upon the official ballot as the candidate, he received votes. These matters were all regular, and as to them there is no contention. There is also no contention that respondent was regularly nominated by the Republican convention. His nomination was duly certified to the county clerk, and his name was properly placed upon the official ballot, and votes were given to him as such candidate. Respondent's name also appeared on the official ballot as candidate of the People's party. The official ballot, therefore, presented the following appearance:
District Judge, Eighth Judicial District.
Vote for one.
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Benton Charles H., People's party
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Benton Charles H., Republican
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Pigott, W. T., Democratic
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At the election, Pigott, Democrat, received some 1,348 votes; Benton, Republican, 1,183; and Benton, People's party, 280. Benton's vote, as Republican and People's party, together, gave him a majority over Pigott. If his People's party votes were not counted, he had not a majority over Pigott, and not a majority of all the votes cast and counted. The canvassing board counted for Benton his Republican and People's party votes. He was declared elected. He received his commission from the governor. He qualified as judge, assumed the office, and has been acting as judge, assumed the office, and has been acting as judge down to the time of the commencement of these proceedings. The relator took the oath of office as judge, but has never acted as such. At his relation this action is commenced. He claims that respondent was not elected, but has usurped the office, and is now an intruder therein. Relator's whole case rests upon his attempted showing that the People's party votes cast and counted for Benton were illegal, and that they were illegal because Benton was not nominated by the People's party. Their alleged illegality rests upon the following facts: On September 3, 1892, the People's party convention was held. At the session of the convention no person was named by the convention as candidate for district judge. As to that office the minutes of the convention, introduced in evidence, show the following proceedings:
Jeff Campbell.
D. McKay. Gt. Falls.
Harry Dickerson.
S. Porter.
Frank Marion.
Harry McLaughlin. Sandcoulee.
John Gillen.
The case was tried before Hon. F. K. Armstrong, judge of the ninth judicial district, presiding upon the trial of the case, without a jury. Upon the trial the county clerk and recorder of Cascade county, being called as a witness, produced the People's party certificate of the nomination of Charles H. Benton, which was filed in his office, which is as follows:
George L. Wales, secretary of the executive or county committee of the People's party, was called as a witness by the relator. As to the nomination of Benton by the People's party, he testified as follows: "I am engaged in the harness and saddlery business. I reside at 405 First Ave. South, in the city of Great Falls. I was the secretary of the People's party convention held in Cascade county last fall, which nominated some men for county offices. Question. That was the only People's party convention held? A. That I was present at. Q. Will you answer the question? Was that the only People's party convention that was held? A. That I was present at. Q. I have asked you whether that was the only People's party convention held? A. So far as I know. Q. Don't you know there was not another one held? A. I can't say. Q. You were here all the fall? A.
Yes sir. Q. You were the secretary of that convention? A. Yes, sir. Q. If another convention had been held, would you have known of it? A. I think I might. Q. Were you a member of the county committee that called it? A. No, sir. Q. Were you a member of the county committee that did appoint? A. No, sir. Q. Did the convention appoint a county committee? A. Yes, (Witness shown paper.) This paper contains the minutes of the convention. (Paper marked 'Exhibit B' for identification.) These minutes were written by myself, and at the time. No additions were subsequently made. I wrote them on two pieces of paper. I took down notes as we went along, and copied them on another piece of paper. Q. Was this the copy that you made? A. At the convention; at the time of the convention. Q. No proceedings were taken except those set forth in the minutes? A. That was the main points. Q. These were the nominations made so far as they were made, and the resolutions adopted so far as resolutions were adopted? A. Yes. I have seen the certificate of nomination which has been introduced in evidence, and which you now show me. (Witness shown the certificate of nomination already introduced in evidence.) This paper bears my signature as secretary of some executive committee. The executive committee consisted of Mr. Kay. myself, Mr. Porter, Mr. Campbell, and Williams. I believe they were the originals. Q. Of the executive committee? A. Yes. Q. By whom was the executive committee appointed? A. I do not know. That executive committee was not appointed by the county convention. Q. And you do not know by whom it was appointed? A. I was not present at the time, and I do not know by what authority the gentlemen named assumed to act as the executive committee, not being present at the time the committee was created. Q. Were you present at any meeting of the committee at which Judge Benton received the nomination? A. Yes, sir. Q. Where was that meeting held? A. At several places. Q. State the places. A. Sometimes one place, and sometimes another. The first was in the convention. Q. That was not the committee meeting. Confine yourself to this meeting of the alleged executive committee that professes to have nominated Judge Benton. A. We met sometimes in McKay's office. Q. Who met at McKay's office, and when? A. I did not keep the dates; we met too often. We met at McKay's office as an executive committee. Mr. McKay, Campbell, Porter, and sometimes Holmes were present; at other times, different members. Q. I would like to know something about this particular time. A. I can't say. Q. Were you ever present at any meeting of the executive committee at which a vote was taken or resolutions adopted providing for the nomination of Judge Benton? and I will ask you next where it was, if there was such a meeting? A. No, sir. Q. Then it is a fact, or is it a fact then, that the information which you had which led you to sign this certificate of nomination concerning any action taken by the executive committee was conveyed to you by hearsay, -that is, by some person who professed to be present? A. By the members of the committee. Q. Which members? A. McKay, Porter, and Campbell." Witness continuing: ...
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