auditor the duty of auditing and settling said claim, and issuing to relator a certificate thereof? These propositions will be considered in the order stated.

To the high office of legislator, and to persons occupying that office, the law guaranties certain rights, privileges, and emoluments, which courts of justice will regard and enforce in proper cases and upon proper showing. Const. Mont. art. 5, §§ 5, 15; 1 Bl. Comm. 164, and notes and cases cited; Cush. Law & Pr. Leg. Ass. §§ 546-597, inclusive; Cooley, Const. Lim. 162, 163; Jeff. Man.; Rob. Man.; 1 Kent, Comm. 235. But in passing upon a question of this character, relating to a person claiming to be a member of the legislative assembly of the state, this court is mindful of the constitutional provision which places the power to try the ultimate right to the office in another forum, i. e., in the legislative house wherein the person claims a seat. Const. Mont. art. 5, § 9. That body, and that alone, having the plenary jurisdiction to try the ultimate right to the office, it must be determined in the case at bar on what character of prima facie evidence will courts of justice enforce collateral or incidental rights and privileges belonging to the members of the legislative assembly; in other words, as applicable to this case at bar, what constitutes in the view of courts of justice sufficient prima facie evidence of his membership in the house of representatives of this state to entitle the relator to the relief which he asks; that is, to have his claim to the emoluments of the office of representative from Silver Bow county audited, settled, and certified. Under our republican form of government, election to this office is made by the votes of the legally qualified electors of the district in the manner prescribed by law, and the result of such election is ascertained in a manner prescribed by law, through the returns and canvass of such votes by legally constituted canvassing boards. The courts have uniformly given credit to the result of an election as ascertained and declared or certified by the legally constituted canvassing board, to whom the law has committed the duty of canvassing the returns of the election, and declaring the result, until this evidence of the election has been overborne by the trial and determination of the ultimate right to such office by the tribunal having jurisdiction to try and determine the same. Crowell v. Lambert, 10 Minn. 369, (Gil. 295;) State v. Churchill, 15 Minn. 455, (Gil. 369;) State v. Sherwood, 15 Minn. 221, (Gil. 172;) People v. Miller, 16 Mich. 56; Swinburn v. Smith, 15 W. Va. 483; Hulseman v. Rems, 41 Pa. St. 396; Kerr v. Trego, 47 Pa. St. 292; Com. v. Baxter, 35 Pa. St. 263; De Armond v. State, 40 Ind. 469; Hadley v. City of Albany, 33 N. Y. 603. This is not only the rule governing the action of courts, but it is the practice adopted in the organization of legislative bodies, and admitting members thereto, until the prima facie evidence contained in the certificate of election issued by

the legally constituted canvassing board is set aside by the proper authority in the determination of a contested election. Cush. Law & Pr. Leg. Ass. §§ 141, 142, and 229241, inclusive. The authorities reviewed and cited by this eminent author amply show the practice upon this question. McCrary, Elect. §§ 270-285, inclusive, and cases cited; Jeff. Man. (12th Ed.) 390.

In the case at bar it is asserted, and not denied, that another person holds a certificate of election to the same office which the relator claims to be occupying, issued by the county clerk of Silver Bow county. It therefore becomes necessary, in the determination of this case, to ascertain what board or person is by law authorized to canvass the returns of the election in question, and ascertain and certify the result, so as to entitle the person holding that muniment of title to the office, prima facie, to maintain his case in an action of this character. If the right of relator to the certificate of election which he holds is challenged, let the question be raised and determined in the proper forum; but if the legislative body of which the relator claims to be a member, vested, as it is, with the powers which the constitution of this state has committed to it, and in view of the long line of precedents which have guided the action of such bodies in like cases, does not determine a controversy as to the election of the relator, then, in the nature of the case, there exists no better evidence of his right to relief than the finding or certificate of the legally constituted canvassing board, charged with the duty of ascertaining the result of the election in question. The title to an elective office, in a majority of cases, rests on this prima facie evidence, because in the great majority of cases there is no adjudication of the right to the office which inquires back of the returns of the proper canvassing board. It is proper to observe here that under well-established rules of law, if it was shown that a contest of the election of the relator was pending in the house of which he claims to be a member, and to which he holds a certificate of election, then this court would withhold judgment until the case was determined; but no such fact appears. The relator's certificate of election emanates from a canvassing board composed of the governor, chief justice, and secretary. The other certificate, which is set up in opposition to this, is held by another person, emanates from the county clerk of Silver Bow county, accredited under the hand and official seal of that officer, and this is not denied by the relator. In the absence of any mention of this latter certificate, the consideration of this case necessarily involves the question as to whether the relator's certificate of election issues from the legally constituted canvassing board, charged with the duty of ascertaining, from the returns, the election of members of the house of representatives. The prima facie right to relief rests upon the credentials, with the facts of service.

The act of congress above mentioned, en

abling the people of Montana and other territories to form and adopt constitutions and set up state governments, provides, in section 8, as follows: "At the elections provided for in this section, the qualified voters of said proposed states shall vote directly for or against the proposed constitutions, and for or against any articles or propositions separately submitted. The returns of said elections shall be made to the secretary of each of said territories, who, with the governor and chief justice thereof, or any two of them, shall canvass the same." Section 9 of the same act provides as follows: "That until the next general census, or until otherwise provided by law, said states shall be entitled to one representative in the house of representatives of the United States, except South Dakota, which shall be entitled to two; and the representatives to the fifty-first congress, together with the governors and other officers provided for in said constitutions, may be elected on the same day of the election for the ratification or rejection of the constitutions; and until said state officers are elected and qualified under the provisions of each constitution, and the states respectively are admitted into the Union, the territorial officers shall continue to discharge the duties of their respective offices in each of said territories." Section 24 of the same act provides as follows: "That the constitutional conventions may, by ordinance, provide for the election of officers for full state governments, including members of the legislatures, and representatives in the fifty-first congress; but said state governments shall remain in abeyance until the states shall be admitted into the Union, respectively, as provided in this act. In case the constitutions of any of said proposed states shall be ratified by the people, but not otherwise, the legislature thereof may assemble, organize, and elect two senators of the United States; and the governor and secretary of state of such proposed states shall certify the election of the senators and representatives in the manner required by law; and when such state is admitted into the Union the senators and representatives shall be entitled to be admitted to seats in congress, and to all the rights and privileges of senators and representatives of other states in the congress of the United States; and the officers of the state governments, formed in pursuance of said constitutions, as provided by the constitutional conventions, shall proceed to exercise all the functions of such state officers; and all laws in force made by said territories at the time of their admission into the Union shall be in force in said states, except as modified or changed by this act, or by the constitutions of the states, respectively." Section 25 of the same act provides as follows: "That all acts or parts of acts in conflict with the provisions of this act, whether passed by the legislatures of said territories or by congress, are hereby repealed."

Having reviewed these provisions of the v.23p.no.12-47

enabling act of congress, we will proceed to the constitution of Montana, and consider its provisions upon this subject. Section 20, "Schedule," 1, provides as follows: "All laws enacted by the legislative assembly of the territory of Montana, and in force at the time the state shall be admitted into the Union, and not inconsistent with this constitution, or the constitution or laws of the United States of America, shall be and remain in full force as the laws of the state until altered or repealed, or until they expire by their own limitations." Section 17 of the schedule in the state constitution provides as follows: "All territorial, county, and township officers now occupying their respective positions under the laws of the territory of Montana or of the United States of America, shall continue and remain in their respective official positions, and perform the duties thereof, as now provided by law, after the state is admitted into the Union, and shall be considered state officers until their successors in office shall be duly elected and qualified, as provided by ordinance, notwithstanding any inconsistent provisions in this constitution, and shall be entitled to the same compensation for their services as is now established by law: provided, that the compensation for justices of the supreme court, governor, and secretary of the territory shall be paid by the state of Montana." Passing to ordinance No. 2, referred to in the last abovequoted section, ordained and promulgated by the constitutional convention, with the constitution of the state, and adopted by the people, we find provisions as follows: "First. That an election shall be held throughout the territory of Montana on the first Tuesday of October, A. D. 1889, for the ratification or rejection of the constitution framed and adopted by this convention." "Fifth. The votes cast at said election for the adoption or rejection of said constitution shall be canvassed by the canvassing boards of the respective counties not later than fifteen days after said election, or sooner, if the returns from all the precincts shall have been received, and in the manner prescribed by the laws of the territory of Montana for canvassing the votes at the general elections in said territory; and the returns of said election shall be made to the secretary of the territory, who, with the governor and the chief justice of the territory, or any two of them, shall constitute a board of canvassers, who shall meet at the office of the secretary of the territory on or before the thirtieth day after the election, and canvass the votes so cast, and declare the result. Sixth. That on the first Tuesday in October, A. D. 1889, there shall be elected by the qualified electors of Montana, a governor, a lieutenant governor, a secretary of state, an attorney general, a state auditor, a superintendent of public instruction, one chief justice and two associate justices of the supreme court, a judge for each judicial district established by this constitution, a clerk of the supreme court, and a clerk of the

district court in and for each county of the state, and the members of the legislative assembly provided for in this constitution. The terms of the officers so elected shall begin when the state shall be admitted into the Union, and shall end on the first Monday in January, A. D. 1893, except as otherwise provided. Seventh. There shall be elected at the same time one representative in the fifty-first congress of the United States. Eighth. The votes for the above officers shall be returned and canvassed as is provided by law, and returns shall be made to the secretary of the territory and canvassed in the same manner, and by the same board, as is the vote upon the constitution, except as to clerk of the district court."

It is clear that said act of congress, legislating for the people of the territory of Montana, supplemented and carried out by the constitution and ordinances framed and promulgated by the constitutional convention, and ratified by the people of the territory, covered the whole question as to what board should canvass the votes cast at the late election, both for and against the constitution, and for members of the legislative assembly, and state and district officers, and declare the result. The fifth paragraph of ordinance 2, above quoted, requires that the returns of said election for the adoption or rejection of the constitution "shall be made to the secretary of the territory, who, with the governor and the chief justice of the territory, or any two of them, shall constitute a board of canvassers, who shall meet at the office of the secretary of the territory on or before the thirtieth day after election, and canvass the votes so cast, and declare the result." The eighth paragraph of the same ordinance provides "that the votes for all the state officers, members of the legislative assembly, and district judges shall be returned and canvassed in the same manner, and by the same board, as is the vote upon the constitution."

It is contended by the respondent that a statute of the territory of Montana, existing prior to the said act of congress, and prior to the adoption of the constitution, provided contrary to the act of congress and the constitution and ordinances above quoted, in that this statute provides that the canvass of the votes cast for members of the legislative assembly shall be made by the boards of county commissioners of the respective counties in the territory, and certificates of election shall be issued by the clerk of the board of county commissioners. Comp. St. § 1033, p. 930. This position is untenable. There are no statutes of the territory of Montana brought over and adopted by the people of this state contrary or in conflict with the constitution thereof, for this plain reason: It is provided by the act of congress above quoted, enabling the people of said territory to form a constitution and state government, that "all laws in force, made by said territories at the time of their admission into the Union, shall be in force in said states, except as modified or

changed by this act, or by the constitutions of the states respectively." Section 24, "An act," etc., supra. This provision was further amplified by section 1 of section 20, "Schedule," of the constitution of Montana, in these terms: "All laws enacted by the legislative assembly of the territory of Montana, and in force at the time the state shall be admitted into the Union, and not inconsistent with this constitution, or the constitution or laws of the United States of America, shall be and remain in full force as the laws of the state until altered or repealed, or until they expire by their own limitation." By these provisions the statute law of Montana territory is remoulded at once to join in harmony with the state constitution. An example of this modification or remoulding of the statute law to harmonize with the constitution is found in reference to the formation of the grand jury. The express letter of the statute as in force up to the time the state was admitted into the Union provided that this body should consist of 16 persons in number, of whom 12 could find an indictment. The state constitution provides that the grand jury shall consist of 7 persons, of whom 5 are competent to find an indictment. It has been abundantly provided, by the act of congress and the state constitution, that the statute is in force as modified by the constitution; and it cannot be maintained, either as a logical or reasonable conclusion, that there is a conflict, where the latter and paramount organic law has expressly adopted the former statute law as modified by the constitution. State v. Ah Jim, 9 Mont. ante, 76.

Counsel for respondent, in this connection, contends that the ordinances framed by the constitutional convention, and appended to the constitution, were not a part of that instrument, and did not have the force and effect of constitutional provisions. For this reason the provisions of the ordinance declaring that the governor, chief justice, and secretary of Montana should constitute a canvassing board to canvass the votes and declare the result of the election of members of the legislative assembly was impotent to work a change or modification of the statute providing that the certificates of election of such members shall be issued by the county clerk. Hence that statute stands in fuli force, and the county clerk's certificate is the best prima facie evidence of a party's right to a seat in the legislative assembly. No authorities have been brought to the attention of the court to sustain the respondent's position in respect to ordinances framed and promulgated by constitutional conventions. It appears this question was raised in the case of Stewart v. Crosby, 15 Tex. 546, wherein Justice WHEELER, in passing upon this point, says: "We think it free from doubt that the ordinance appended to the constitution is a part of the fundamental law of the land. Having been framed by the convention that framed the constitution of the state, and adopted by the

convention and the people, along with the constitution, it is of equal authority and binding force upon the executive, legislative, and judicial departments of the government of the state as if it had been incorporated in the constitution, forming a component part of it."

The case cited appears to have involved questions of great importance, as shown by the remarks of the judge at the commencement of the opinion, as follows: "In the argument of this case, questions of great moment to the parties, involving an inquiry respecting the constitutionality of the legislative enactments which they have invoked, and on which they rely to maintain their claims, have been discussed." Mr. Paine, in his work on Elections, (section 294,) announces the same doctrine, as does the case of Stewart v. Crosby, supra, in the following terms: "To launch a new constitution, certain machinery and arrangements are always necessary, which, having subserved this single purpose, are of no further use. These might, of course, be provided in the constitution itself, but to incorporate temporary provisions into the body of a permanent constitution would be to incumber the instrument with matter which might more properly be excluded from the text of the constitution, and placed in such a form as to be dropped when all the uses for which it was provided have been fully subserved. Accordingly, these provisions for inaugurating new state constitutions usually take the form of detached ordinances or schedules. The validity and effect of these provisions are precisely the same, whether they are placed in the ordinance or schedule, to be thrown aside when no longer needed, or imbedded in the text of the constitution, to remain a permanent blemish after the accomplishment of all the purposes for which they were required. It is clearly competent for a constitutional convention, by an ordinance or schedule, to change the time for holding the general election of the state. * * * The people of the state, in their constitutional conventions, are always their own masters. There is nothing to restrain them from giving whatever form they prefer to its organic law, except the constitution of the United States, and treaties made and laws enacted by the United States in pursuance thereof."

To declare that the county clerk's certificate of election to the office in question is the highest prima facie evidence of title to the office, as against the certificate of the canvassing board constituted by the act of congress, and the ordinance framed by the constitutional convention, and adopted by the people, would be, in effect, to declare that the provisions of the statute in this respect stand without modification by the act of congress and constitution and ordinances, and prevail over them. If the ordinance did not work a change in the statute in this particular, how can it be maintained that the same ordinance worked such important changes in other respects? The effect of ordinance No. 2 was to

terminate the terms of all the elective officers of the territory of Montana, while under the literal statutory provisions their terms of office would have continued for more than a year. And under that theory the officers elected at the iate election, under this ordinance, who have taken possession of these offices, are there without authority. The logical analogies of this theory need not be further traced. It destroys itself by its inherent fallacy, without the force of the authorities above quoted to the contrary. The constitutional convention was authorized, by act of congress, to make provision, "by ordinance," for the election of officers for full state government. In the body of the constitution, at section 17, "Schedule," the state officers to be "duly elected and qualified, as provided by ordinance," are referred to. The ordinance was framed and adopted by the convention, promulgated to the people, and by them ratified. The provisions of the constitution and ordinance relating to carrying out the election, to set in motion the state government, was intended for execution within a short time after the constitution was framed. The plain intent of the convention when framing ordinance No. 2 is shown in the provision dividing the state, legislative, and district officers into one class, and directing that the returns of the election of these officers should be made to the secretary of the territory, and canvassed in the same manner and by the same board as the vote upon the constitution; and in the ninth paragraph of that ordinance the election of the county and township officers was provided for; and the tenth paragraph provides that the votes for the above county and township officers, and for clerk of the district court, shall be returned and canvassed as is now provided by law. The effect of the ordinances upon the statute is to change and modify its provisions so far as is necessary to give the provisions of the ordinance full scope and effect. It follows that the relator's certificate of election emanates from the legally constituted canvassing board, and will be admitted in this action as prima facie evidence of his election to the office in question.

The facts of attendance upon the sessions of the house, and as to distance traveled, are asserted by the affidavit of the relator, and admitted by the verified answer of respondent. No question has been raised upon these matters set forth in relator's affidavit. The constitution of the state fixes the amount of compensation at $6 for each day's attendance, and 20 cents per mile for each mile necessarily traveled, by the nearest usually traveled route, in going to the seat of government from the member's residence, and returning thereto; and the relator's claim conforms to these prescribed rates.

It remains to be determined whether the law enjoins upon the state auditor the duty of auditing and settling said claim, and issuing to the relator a certificate thereof. Section 121, fifth div. Comp. St., provides as