State v. District Court of the Fourteenth Judicial District in and for Broadwater County

• Citation: 145 P. 721,50 Mont. 134
• Decision Date: 18 December 1914
• Docket Number: 3595.
• Parties: STATE EX REL. SMITH v. DISTRICT COURT OF THE FOURTEENTH JUDICIAL DIST. IN AND FOR BROADWATER COUNTY ET AL.
• Court: Montana Supreme Court

145 P. 721

50 Mont. 134

STATE EX REL. SMITH v. DISTRICT COURT OF THE FOURTEENTH JUDICIAL DIST. IN AND FOR BROADWATER COUNTY ET AL.

No. 3595.

Supreme Court of Montana

December 18, 1914

Certiorari by the State, on the relation of Charles W. Smith, against the District Court of the Fourteenth Judicial District in and for the County of Broadwater and John A. Matthews, judge thereof. Demurrer and motion to quash sustained, and proceeding dismissed.

Gael G Wilson, of Helena, for appellant.

O. W McConnell and R. Lee. Word, both of Helena, for respondents.

HOLLOWAY J.

At the general election held on November 3, 1914, Charles W. Smith was the Republican candidate, and Charles S. Muffly was the Democratic candidate, for state senator for Broadwater county. The canvassing board returned that Muffly received the highest number of votes, and a certificate of election was issued to him on November 6th. On November 25th Smith commenced an action in the district court of Broadwater county contesting Muffly's election. On December 3d the contestant secured leave of the court to amend his petition or complaint by striking therefrom:

"In the District Court of the Fourteenth Judicial District of the State of Montana, in and for the County of Broadwater.

Charles W. Smith, Contestant, v. Charles S. Muffly, Contestee.

Petition.

To the Honorable John A. Matthews, Judge of the District Court of the Fourteenth Judicial District of the State of Montana in and for the County of Broadwater:

The petition of contestant, above named, alleges"

--and substitute therefor the following:

"In the Matter of the Contest of Election of Charles S. Muffly to the Office of Senator for the County of Broadwater, State of Montana.

Charles W. Smith, Contestant, v. Charles S. Muffly, Contestee.

Statement of Contest.

Charles W. Smith, contestant, presents and files this his statement of contest and alleges"

--and by striking out the prayer that the court determine that Muffly was not elected and that contestant was, that a citation issue to Muffly requiring him to appear and answer, and that the ballots used at the election in precincts 1 to 13 be produced in court and counted, and that a certificate of election be ordered to issue to contestant, and to substitute therefor:

"Wherefore contestant prays that the clerk of the district court of the Fourteenth judicial district of the state of Montana, in and for the county of Broadwater, issue a commission directed to two justices of the peace of said county to meet at a time and place specified in such commission, in accordance with law, for the purpose of taking the depositions of such witnesses as the above-named parties to the above-entitled contest may wish to examine, and that such other proceedings may be had for the determination of said contest as are authorized by law and by the statutes of the state of Montana."

On the same day a paper designated "Statement of Contest" was filed with the clerk of the court, and application made for a commission to two justices of the peace to take testimony. The clerk having refused to issue the commission, proceedings in mandamus were instituted in the district court to compel the performance of that duty. The court refused to issue the writ, and this proceeding in certiorari was instituted to review the court's action. Upon the return, counsel for the respondent interposed a demurrer and a motion to quash, and the matter is before us for determination upon the complete record of all prior proceedings. Technically, all of these proceedings were not before the district court, and it is urged are not now before us. But nothing is before us which we would not have required upon a hearing upon the merits, and nothing has been excluded which could have come before us properly. We shall therefore disregard the technical objection made, and consider the record as a whole.

Sections 48, 49, 52, and 53 of an act approved at the general election in 1912 (Laws 1913, pp. 612, 613), under the initiative power reserved to the people by our state Constitution, and familiarly known as the Corrupt Practices Act, provide for contesting nominations or elections by actions in the district courts. Section 49, among other things, declares:

"In the case of a contested nomination or election for senator or representative in the Legislative Assembly, * * * the court shall forthwith certify its findings to the secretary of state to be by him transmitted to the presiding officer of the body in question."

Article 6, pt. 3, tit. 1, Revised Codes (sections 82 and 92), provides methods for securing and perpetuating testimony in a contest of an election of a member of either house of the Legislative Assembly. The first method requires, as a condition precedent, that within 20 days after the certificate of election has been issued a statement of contest shall be filed with the clerk of the district court of the county where the contest arises, whereupon the clerk must issue a commission to two justices of the peace of his county, who shall take the depositions of the witnesses produced by either the contestant or contestee, report the same to the clerk, who shall forward the evidence to the secretary of state, by him to be transmitted to the presiding officer of that branch of the Legislature before which the contest is to be tried. The second method (section 91) provides for depositions to be taken in the manner and under the rules applicable in civil cases; and section 92 provides:

"The house before which the contest is pending may take such other evidence in the case as it deems material." While the Corrupt Practices Act is in force by virtue of a vote of the people, it has no greater efficacy as a statute than if it had been enacted by the Legislature; in other words, it cannot affect any provision of the Constitution. If by this act it was sought to confer upon a district court power to decide which of two legislative candidates has been elected, it is to that extent, and for that reason, invalid. Section 9, art. 5, of our state Constitution provides:

"Each house (of the Legislative Assembly) shall * * * judge of the elections, returns, and qualifications of its members."

A like provision is found in the Constitution of the United States and in the Constitution of every state in the Union, so far as we know. Speaking generally, our state Constitution is a limitation of powers, but the provision in section 9 above is an exception to that rule. This is a distinct grant of power by the people to each branch of the Legislative Assembly, a power necessary to the existence and independence of each house as an instrumentality of government. This power emanating from the sovereign people, cannot be delegated by either house or both acting together; and likewise neither house possesses the power to divest itself of the authority thus conferred upon it. O'Neill v. Yellowstone Irr. Dist., 44 Mont. 492, 121 P. 283; State v. Holland, 37...