affiant, were duly elected members of the House of Representatives of the Legislative Assembly of the State of Montana, and entitled to seats therein, which said report was approved and adopted by the said House.

That, thereafter, the said House continued to sit from day to day, from that date, to wit: November 23rd, A. D. 1889, to the date of the signing of affiant's affidavit, to wit: January 16th, A. D., 1890, and that affiant has attended said sessions, from that time until the time of making this affidavit, as a member of said House of Representatives, except on the 13th day of January, A. D, 1890.

That affiant travelled the distance of seventy-five miles in going by the nearest usually travelled route, from his residence to the capital of said State to attend said Legislative Assembly. That, on the 23rd day of November, A. D., 1889, the affiant and all the said twenty-nine members, took the oath prescribed by the Constitution of the State of Montana as members of the Legislative Assembly of the State of Montana, and that the said thirty members have attended upon the various sessions of the said House.

That on the 16th day of January, A. D., 1890, affiant presented to Edwin A ̧ Kenney, who was then the Auditor of the State of Montana, at his office, an account against the State for his services and attendance as a member of the House aforesaid, at the rate of $6 per day, and mileage at the rate of 20 cents per mile for the distance travelled as afore-aid, as provided by law, and requested the said Auditor to audit and settle the said claim and give affiant a certificate thereof; but to audit and settle said claim or give affiant a certificate thereof, or any part thereof, the said Auditor did then and there refuse, nor would the said Auditor approve such claim, or any part thereof.

To which affidavit affiant attaches an account as "Exhibit A," which he verifies as a copy of the said account presented to said Auditor and referred to in his affidavit.

Upon this showing, an alternative writ of mandate was issued out of this court requiring the said Edwin A. Kenney, Auditor of the State of Montana, to forthwith audit and settle said claim against the Treasury of the State of Montana, and give to said William Thompson a certificate thereof, or to show cause before this court at 10 o'clock a. m., January 20th, A. D., 1890, why he had not done so.

To this process the respondent made his verified answer, wherein he expressly admitted in detail all the affirmative allegations set forth in the relator's affidavit. But in addition to such express admissions, the respondent alleged other matters, as follows:

"Defendant further says, that in the County of Silver Bow, which is a Representative District, ten persons were apportioned to be elected members of the House of Representatives. That as to the clection of five of said persons, no controversy has arisen, but as to the said relator and four of his colleagues, sitting VOL. XXXVIII.—15.

with him in the House aforesaid, a controversy as to their election has arisen, and unless they are primi facie members of such House and entitled to act therein, no quorum has been present in said House, and the organization thereof has been without legislative authority. That the House is composed of thirty members, whose muniment of title is the ascertainment, declaration and certificate of the Canvassing Board, consisting of the Governor, Chief Justice and Secretary of the Territory of Montana, as provided in ordinance number two, passed by the Con stitutional Convention of the State of Montana. That on the 23rd day of November, A. D., 1889, twenty-four persons from various representative districts in the State of Montana, who had been ascertained and declared to have been elected members of said House of Representatives, by the Governor, Chief Justice and Secretary aforesaid, under said Ordinance of the Constitution, did meet at another place in the capital of said State, and five members from the County of Silver Bow, one of whom assumed to have been elected in lieu of relator, met with said members last aforesaid, and having been declared not elected by the said Canvassing Board, provided for in said ordinance, did, nevertheless, assume to be members of the House of Representatives, and did then and there present as their muniment of title to said office, each a certificate signed by the County Clerk and Recorder of Silver Bow County, over his seal, certifying and declaring that such person was elected one of the Representatives of the district of Silver Bow County, as Representative in said House."

To the foregoing new matter set forth by respondent, the relator filed his replication, as follows:

First. The relator "denies that any controversy has arisen as to his election, and the election of four of his colleagues from the County of Silver Bow, as set forth in said answer.

Second. Avers that at the times the said House was organized, and when said House passed upon the report of the Committee on Credentials, as set forth in relator's application, a quorum of said House was present and acted therein."

The parties rested their case upon the allegations, admissions and denials in the pleadings above set forth, and upon the questions raised therein, the case was argued and submitted to the court for decision.

At the commencement of the consideration of the questions involved herein it is proper to notice the scope and effect of the relator's replication. He denies therein "that any controversy has arisen as to his election, and the election of four of his colleagues;" but he does not deny the further facts set out in respondent's answer. These specific facts alleged, stand unchallenged, and were urged upon the consideration of the court as ground for the refusal, on the part of the respondent, to audit and settle relator's claim, and to grant him a certificate thereof, as provided by law.

The relator relied upon the facts alleged in his affidavit, expressly admitted by respondent's answer, as grounds for the relief which he prayed for.

The effect of these pleadings raised questions of law only. No issues of fact were made upon which evidence could properly be introduced. The denial made by the relator's replication was nothing more than a denial of an immaterial allegation.

Compiled Statutes of Montana, Section 575 of the code of cívil procedure, relating to the cases of mandamus, provides as follows:

"If no answer be made, the case must be heard on the papers of the applicant. If the answer raises only questions of law, or pu's in issue immaterial statements, not affecting the substantial rights of the parties, the court must proceed to hear, or fix a day for hearing the argument of the case."

This court is given original jurisdiction to hear and determine actions of this character by section 3, article 8, of the constitution of Montana, as follows:

"The appellate jurisdiction of the Supreme Court shall extend to all cases at law and in equity, subject, however, to such limitations and regulations as may be prescribed by law. Said Court shall have power, in its discretion, to issue and hear and determine writs of habeas corpus, mandamus, quo-warranto, certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary and proper to the complete exercise of its appellate jurisdiction."

In reference to the office of the writ of mandamus, the Compiled Statutes of Montana, sections 565 and 567, of Code of Civil Procedure provide as follows:

Sec. 566. It may be issued by any court in this State, except justice's, probate and mayor's court, to any inferior tribunal, corporation, board or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such inferior tribunal, corporation, board or person.

Sec. 567. The writ shall be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law. It shall be issued, upon affidavit, on the application of the party beneficially interested.

It must now be determined whether, or not, the act, the performance of which is here sought to be compelled, is one which the law especially enjoins upon the respondent as a

duty resulting from his office as Auditor of this State. This involves two propositions:

First. Is the relator entitled, upon the facts shown, to have his claim audited and settled, and to receive a certificate thereof?

Second. Does the law enjoin upon the state 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 guarantees certain rights, privileges and emoluments, which courts of justice will regard and enforce in proper cases and upon proper showing: Constitution of Montana, Art. 5, Sections 5, 15; 1 Blackstone, 164 and notes and cases cited; Cushing Leg. Assemblies, Sections 546 to 957 ; Cooley's Cont. Lim., 162, 163; Jefferson's Manual; 1 Kent's Com. 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: Constitution of Montana, Art. 5, Sec. 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 the courts of justice sufficient prima facie evidence of his membership in the House of Represenatives 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 the 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 (1865), 10 Minn. 369; State v. Churchill (1870), 15 Id. 455; State v. Sherwood (1870), 15 Id. 221; People v. Miller (1867), 16 Mich. 56; Swinborn v. Smith et al. (1879), 15 W. Va. 483; Hulsman v. Rems (1861), 41 Penn. 396; Kerr v. Ticge (1864), 47 Id. 292; Commonwealth v. Baxter (1850), 35 Id. 263; DeArmond v. The State cx rel. Cambell (1872), 40 Ind. 469; Hadley v. City of Albany (1865), 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 and Practice of Leg. Assemb., Sections 141, 142 and 229 to 241, inclusive. The authorities reviewed and cited by this eminent author amply show the practice on this question: McCray on Elections, Sections 270 to 285, inclusive, and cases cited; Jefferson's Manual (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