Stephens v. Nacey
| Decision Date | 26 May 1914 |
| Docket Number | 3438. |
| Citation | 141 P. 649,49 Mont. 230 |
| Parties | STEPHENS v. NACEY. |
| Court | Montana Supreme Court |
Appeal from District Court, Valley County; J. Miller Smith, Judge.
Election contest by James R. Stephens against Patrick Nacey. Judgment for the contestee, and contestant appeals. Affirmed.
See also, 47 Mont. 479, 133 P. 361.
Norris Hurd and McKellar, of Glasgow, for appellant.
John L Slattery, of Glasgow, and Purcell & Horsky, of Helena, for respondent.
Election contest involving title to the office of sheriff of Valley county. Heretofore a judgment by the district court dismissing the contest for want of jurisdiction was reversed and it was directed that the right to the office be determined as it should be made to appear under the issues of fact presented by the pleadings. Stephens v. Nacey, 47 Mont. 479, 133 P. 361. The allegations in the original statement impeached the legality of the vote cast at polling place No. 1, of Saco precinct, and the entire vote cast at Poplar precinct. Prior to the trial the contestant, by leave of court, amended the statement so as to eliminate the allegations impeaching the vote cast at Saco, thus leaving for determination only the question whether the vote as cast at Poplar precinct was properly returned by the judges and clerks of election at that precinct and included by the board of canvassers in ascertaining the result. According to the result as declared by the board, the contestant received a total of 1,084 and the contestee 1,110 votes, thus showing the election of the contestee by a plurality of 26 votes. At Poplar precinct there were cast for the contestant and contestee a total of 56 votes, of which the former received 11 and the latter 45. If, therefore, the vote at this precinct should be rejected, it would leave the totals 1,073 for the contestant, and 1,065 for the contestee, thus establishing the election of the former by a plurality of 8 votes. It is alleged that all the votes cast at Poplar precinct were illegal, and should have been rejected by the board of canvassers, for the reasons: That the town of Poplar is situated on the Ft. Peck Indian reservation; that the boundaries of Poplar precinct are wholly within the boundaries of the reservation; that it was not lawful to establish a precinct there; that all the persons who cast their votes there resided upon the reservation, and therefore, not being residents of the state of Montana, were not qualified electors; and that, in receiving and counting their votes and including them in the sum total of the votes cast, the judges of election and the board of county canvassers were guilty of malconduct in the performance of their duties. The issues joined upon these allegations the court found generally in favor of the contestee and, directed judgment to be entered accordingly. Contestant has appealed.
Section 499 of the Revised Codes declares:
"No officer of this state, nor of any county, must establish a precinct within the limits of any county not fully organized, or at any Indian agency, or at any trading post in the Indian country or on any Indian reservation."
In section 21, c. 113, of the Laws of 1911 (Laws 1911, p. 223), are found these provisions:
These provisions, so far as they apply to this case, may be summarized as follows: (1) That the residence of an elector for voting purposes is at the place of his fixed habitation to which, when absent therefrom, he expects to return; (2) that a voting precinct cannot lawfully be established upon an Indian reservation; (3) that after a person has gained a residence in any county of the state, he does not lose his residence or acquire another by living upon an Indian reservation--in other words, his residence for voting purposes remains at the place where he acquired it before going upon the reservation; and (4) that a person who has not theretofore acquired a residence in some county at a place off the reservation shall not be deemed a resident of Montana by virtue of his residence upon the reservation, unless he shall be in the employ of the government while upon the reservation.
Counsel have discussed extensively in their briefs the validity of the foregoing provisions; counsel for the contestee urging that they are repugnant to several provisions of the Constitution, in that they arbitrarily deprive qualified electors of their right to vote as guaranteed by that instrument. As we view the case, it is not necessary to determine any of the questions presented and discussed in this behalf. Upon the facts admitted or proven at the trial (there was no substantial conflict in the evidence), the trial court concluded that it was lawful for the county commissioners to establish a voting precinct at Poplar, because it is not upon an Indian reservation, within the meaning of section 499, supra; that the persons who cast their votes there were qualified electors; and that the return of the vote, as made by the clerks and judges, was properly canvassed, and included in the estimate of the board of county commissioners ascertaining the final result.
These facts are not disputed: By an act of the Congress approved February 15, 1887 (24 Stat. 402, c. 130), there was granted to the St. Paul, Minneapolis & Manitoba Railway Company a right of way 150 feet in width across the lands included in the Ft. Peck Indian reservation, from east to west. The grant also included other lands adjacent to the line of road at station points, to the extent of 300 feet in width and 3,000 feet in length, for station buildings, shops, etc. Subsequently the Great Northern Railway Company succeeded to the rights of the original grantee, and has since occupied the right of way with its railroad. By section 3 of the act of Congress, providing for the survey and allotment of the lands embraced within the limits of the reservation and for the sale of the surplus lands after allotment, approved May 30, 1908 (35 Stat. 558, c. 237), the original grant was supplemented by a grant of other lands along the right of way for reservoir, dam sites, etc., for use in connection with the operation of the railroad. By section 14 of the latter act the Secretary of the Interior was authorized to reserve and set aside for a town site at Poplar, a settlement which had grown up near the agency located there, and about midway between the east and west boundaries of the reservation, a tract of land of not less than 40 acres. He was directed to have this surveyed, laid out, and platted into lots, streets, alleys, and parks, and thereupon to dispose of the lots by sale, as provided by section 2381 of the United States Revised Statutes (U. S. Comp. St. 1901, p. 1455), relating to town sites on public lands. There was reserved, however, to persons actually occupying lots at the time of the survey the right to make entries thereof for patents prior to the time fixed for public sale. Under the authority thus conferred, a town site of 130.82 acres was reserved, and the plat of it was filed in the General Land Office at Washington prior to October 30, 1909, and subsequently a copy was filed in the local land office at Glasgow. The town site is on the line of the railroad, and its south boundary is the north line of the railroad right of way. Prior to the date of the election in November, 1912, which gave rise to this contest, many patents had been issued to occupants and purchasers of lots, and at that time the population residing in the settlement and engaged in trade and other occupations amounted to about 600. Since the date of the creation of the town site the federal government has treated it as not a part of the reservation, for purposes of trade with the Indians, in that it has ceased to require persons engaged in trade there to obtain a license. Moreover, from the time patents have issued, the lots have been assessed and taxed for state and county purposes, the same as real estate owned by residents in Valley county outside of the reservation, and the same as the right of way and other lands held by the Great Northern Railway Company. The Indian agency is on land outside of the town site.
It is conceded by counsel for contestant that at the date at which the grant to the railway company became effective the Indian title to the lands granted was extinguished, and that they at once became segregated from the reservation and subject to the jurisdiction of the state government. It is insisted however, that,...
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