Formation of Montana State Government

As this chapter is to deal with the formation of the state government of Montana, let us go back to 1884, in January of which year a constitutional convention was held at Helena, an act having been passed by the thirteenth session of the Montana legislature authorizing an election for delegates to be held in November 1883. The election took place,[1] and the convention met, forming a constitution subject to acceptance or rejection by the qualified electors at the biennial election of 1884. The voting on adoption was light, the total vote being 7,197 less than the total for delegate to congress, which was 26,969. Of these who gave expression to their wishes, 15,506 were for and 4,266 against the constitution, the majority being significantly large in favor of statehood, if we may judge by positive and not by negative evidence. However, nothing further came of the movement at that time, although it was not abandoned. E. K. Toole, democrat, was elected delegate to congress, and the fourteenth legislature, which has already been named, enacted laws highly creditable to the members and useful to the territory.

In May 1884, the republicans of Montana held a Territorial Convention to elect delegates to the National Republican Convention, their choice falling upon Wilbur F. Sanders of Helena, and Lee Mantle of Butte, with M. J. Leaming of Choteau, and Hiram Knowles of Silver Bow, as alternates.[2] The preference of Delegate Mantle, as expressed in territorial convention, was for George F. Edmunds for president, and that of Delegate Sanders was for James G. Blaine.

The democrats elected Samuel T. Hauser of Helena and Samuel Ward of Butte delegates to the Democratic National Convention. W. J. McCormick, one of the alternates, was made a member of the national committee, and S. T. Hauser a member of the notification committee, this being the first occasion on which Montana was represented in a national convention, and the first time also that territorial delegates were placed upon committees by one of them.

Hauser, who was appointed governor in July 1885,[3] resigned late in 1886, and H. P. Leslie of Kentucky received the appointment. Governor Lesie found the territory prosperous and peaceful, giving him little anxiety on any account. He seemed by his reports to be impressed by its probable future greatness, and to feel a pride in its advancement. More he could not do than to remind the general government how little it had done towards the encouragement of his aspiring commonwealth, and this he did not fail in doing.

The legislature of 1887 neglected to make an appropriation for printing its journals, and therefore no notice can be taken of its proceedings.[4] Partisan feeling, although gaining force and momentum as the prospect of statehood assumed greater certainty, had not been permitted to mar the tranquility of communities. For twenty-four years every legislature had been democratic, but in 1888 there was a sufficient number of republicans elected to give that party a working majority in both branches of the legislature. The principal measures of general interest acted upon at the sixteenth session of the Montana assembly, which met January 17, 1889, were, the passage of a memorial relating to a bill introduced in congress by delegate Toole to grant to the territory the abandoned Fort Ellis reservation for educational purposes;[5] the appointment of a commission to codify the laws of Montana;[6] the enactment of a law regulating the practice of medicine and surgery; acts establishing some county boundaries; an act to provide for the organization, regulation, and discipline of the national guard of Montana; the refusal by the legislature to appropriate money to spend an exhibit of Montana productions to the Paris exposition;[7] the creation of the office of mine inspector, which was to secure greater safety in mining; the consideration of numerous petitions requesting the legislature to memorialize congress: to take such action as would preserve the mineral and of Montana free from title, or claim of title, in any railroad company, and continue it open for exploration and location;[8] also the enactment of a registration law which should secure the purity of elections.

These latter two measures were of the greatest importance. Should railroad companies claim the mineral lands to be found within the limits of their grants, many mining claims already opened would be forfeited, or if not forfeited, their development must be delayed until congress or the courts had determined their proprietary rights. The question was brought to the attention of the people by the action of the Northern Pacific railroad company advertising certain applications for patent on mineral lands, and by rulings of the land department which appeared to be adverse to the mineral claimants, together with the probability that patents might be issued to the railroad company regardless of the rights of mine owners. These apprehensions led to the holding of a mineral land convention at Helena on the 29th of November, 1889, of which Lee Mantle was president, in order to devise new ways of meeting a serious crisis in the affairs of Montana, 2,000,000 acres of the richest mineral land, including the famous Oro Fino district, being involved in the threatened coup of the railroad company.[9]

A registration law was passed, which it was believed would secure purity of the ballot, the form of ticket adopted being, except some modifications that used in what is known as the Australian system. It secures secrecy[10] by placing upon the same ticket the names of opposing candidates, the voter marking off these he does not approve. Under this system ballot-box stuffing is prevented; and except extraordinary intimidation were used, would always give correct returns.

A law reapportioning the legislative assembly Montana was also enacted at this session, which expired March 14th, having passed in both houses a memorial to congress relating to admission into the union. A few days later, congress passed the enabling act authorizing a constitutional convention.

By the election of November 1888, Thomas H. Carter, republican, was chosen delegate to congress.[11] Subsequent to the adjournment of the legislature Benjamin F. White of Dillon was appointed Governor[12] by President Harrison. The passage of an enabling act by a republican congress also gave to Montana politics a new, and, by many, an undesired turn. However, the people were nearly unanimous in favor of state government, and proceeded with great good humor to the election of their constitution makers. The convention assembled July 4th at Helena, electing William A. Clark president,[13] and William H. Todd chief clerk. Its material was of the best of both political parties, who worked together harmoniously, and “grateful to almighty God for the blessings of liberty,” ordained and established in due time the constitution of the state of Montana.[14]

This instrument possesses, in the main, the same features which distinguish the constitutions of all the younger states, which are even more jealous of their liberties than their elders. While restricting legislation and extravagant appropriation of public moneys, he interests of labor were carefully protected. It declared that the legislature might provide for a bureau of agriculture, labor, and industry to be located at the capital, and under the control of commissioners appointed by the governor, subject to the approval of the senate. It was made unlawful for the warden of he penitentiary, or any officer of any reformatory, institution in the state, or for any state officer, to let prison labor by contract.

With regard to revenue and taxation, the revenue necessary for the support of the state was to be provided by a uniform rate of assessment upon a just valuation of all property, except in cases provided; and a license-tax upon persons and corporations might be imposed by the legislature for state purposes. The property of the United States, the state of Montana, of counties, cities, towns, school districts, municipal corporations, and public libraries should be exempt; and such property as should be used by agricultural and horticultural societies, or for educational purposes, places of religious worship, hospitals, places of sepulchre, and charitable institutions of a public nature, were also exempted.

All mines and mining claims, both placer and rock in place, containing gold, silver, copper, lead, coal, or other valuable minerals, after purchase from the United States should be taxed at the price paid the United States, unless the surface-ground had a separate value for other than mining purposes, when it should be taxed according to its independent value; all machinery used in mining, and all property and surface improvements having a value separate from mines or mining claims, were subject to tax as provided bylaw, as was also the annual net proceeds of all mines and mining claims. Municipal corporations only could levy taxes for municipal purposes; and taxes for city, town, and school purposes might be levied upon all subjects and objects of taxation, but the valuation of such property should not exceed the valuation of the same property for state and county purposes; and no county, city, or town should be released from its proportionate share of state taxes.

The power to tax corporations or corporate property should never be relinquished or suspended, and all corporations in the state, or doing business therein, should be subject to taxes for state, county, school, municipal, and other purposes, on real or personal property owned by them, and not exempted by the constitution. Private property should not be sold for corporate debts, but the legislature should provide by law for the funding of such indebtedness, and the payment thereof, by taxation of all private property not exempt within the limits of the territory, over which such corporations had authority.

The rate of taxation in any one year should not exceed three mills on each dollar of valuation; and whenever the taxable property in the state shall amount to $100,000,000 the rate should not exceed two and one half mills on each dollar, and whenever it should amount to $300,000,000 the rate should not exceed one and one half mills to the dollar, without a proposition to increase the rate being submitted to a vote of the people.

No appropriations should be made or authorized by the legislature, whereby the expenditures of the state should exceed the total tax provided by law, and applicable to such expenditure, unless the legislature making the appropriation should provide for levying a sufficient tax, not exceeding the constitutional rate; but this provision should not apply to appropriations made to suppress insurrection, defend the state, or assist in defending the United States, and no appropriation should be made for a longer period than two years.

Particular attention was bestowed upon the article on corporations, with a view to prevent the evils arising out of the assumption of power through which many commonwealths have suffered, and to make chartered companies amenable to law.[15]

The article on elections declared that an elector must be a male person of legal age, a citizen of the United States, have resided in this state one year, and in the county, town, or precinct such time as the law prescribed, not a felon; but no person having the right to vote at the time of the adoption of the constitution should be deprived of the right to vote on the adoption. And it was provided that after the expiration of five years no person except citizens of the United States should have the right to vote. No person should be elected or appointed to any office in the state who was not a citizen of the United States, and who had not resided one year in Montana. The legislature should have the power to pass registration and other laws necessary to secure the purity of elections. Women should be eligible to held the office of county superintendent, or any school district office, and have the right to vote at any school district election. And upon all questions submitted to the tax-payers of the state, or any political division thereof, women who were tax-payers, and possessed of the qualifications for the right of suffrage required of men by the constitution, should, equally with men, have the right to vote. In all elections by the people, the person receiving the highest number of votes should be declared elected.

The question of the permanent location of the capital should be submitted to the qualified electors in the year 1892, after which it would require a two-thirds vote of the electors to change it, and the legislature should make no appropriations for capitol buildings until the seat of government should be permanently located. Ample provision was made for a school fund. The legislative and executive departments of the government had their powers carefully defined and guarded. The session of the state legislative assembly should meet at noon on the first Monday of January, 1890, and each alternate year thereafter, except the first, which should be determined by the proclamation of the governor after the admission of the state into the union, but not more than fifteen nor less than ten days thereafter.

The executive department should consist of a Governor, Lieutenant Governor, Secretary of State, Attorney General, State Treasurer, State Auditor, and Superintendent of Public Instruction, each of whom should held office four years, or until his successor was elected, beginning on the first Monday of January next succeeding his election, except that the terms of office of these chosen at the first election should begin when the state was admitted, and end on the first Monday of January 1893.

The judicial power of the state was vested in the senate sitting as a court of impeachment, in a Supreme Court, District Court, Justices of the Peace, and such inferior courts as the legislature might establish in cities or towns. The Supreme Court should have appellate jurisdiction only, and held three terms yearly. The Supreme Court should consist of three justices, a majority of whom should be necessary to pronounce a decision. Their terms of office should be six years, except the first chief justice, who should held until the general election in 1892, and one of the associate justices, who should held until the general election of 1894, the other holding until 1896, and each until his successor was elected and qualified; The terms, and who should be chief justice, should be designated by ballot at the first and all subsequent elections, one justice being elected every two years. No person should be eligible to the office of supreme judge who had not been admitted to practice law in the Supreme Court of the territory or state of Montana, who was not thirty years of age, not a citizen of the United States, or who had not resided in the territory or state for the two years next preceding his election. Much the same restrictions were imposed upon the choice of district judges. Taken as a whole, the constitution framed at Helena between July 4 and August 26, 1889, is perhaps the most complete and well-considered instrument of the kind ever perfected by a new state[16] although in the address to the people of Montana, in which it is submitted for their ratification or rejection, it was said: “We do not claim that it is a perfect instrument. No constitution ever reflected the consensus of public opinion upon all questions. All constitutions are the result of compromises.”

The day set for a general election of state officers, and the adoption or rejection of the constitution, was the 1st of October. The election took place under the election laws passed by the sixteenth legislature requiring registration and proofs of citizenship. T. H. Carter, the recently elected delegate to congress, was the republican nominee for congressman. T. C. Power[17] was candidate for governor on the same ticket, and J. E. Rickards for Lieutenant Governor; for Secretary of State, L. Rotwitt; for Treasurer, R. C. Hickman; for Auditor, E. H. Kinney; for Attorney General, Henry J. Haskell; for Superintendent of Public Instruction, J. Gannon; for Chief Justice, H. N. Blake; for Associate Justice for the long term, W. H. De Witt; for Associate Justice for the short term, E. N. Harwood ; for Clerk of the Supreme Court, W. J. Kennedy, – completed the republican ticket.

The Democratic Candidate for Congressman was Martin Maginnis; for Governor, J. K. Toole; for Lieutenant Governor, C. E. Conrad; Secretary of State, J. A. Browne; State Treasurer, T. E. Collins; State Auditor, Fitzgerald; Attorney General, W. Y. Pemberton; Superintendent of Public Instruction, P. Russell; Chief Justice, Stephen De Wolfe; Associate Justice for the long term, Waller M. Bickford; for the short term, F. K. Armstrong; Clerk of the Court. Cope.

The election gave a very large majority for the constitution; gave Montana a republican congressman,[18] and a democratic governor; a republican Lieutenant Governor, and all the other state officers republican. That, however, was not so much a matter of concern to the political parties as the complexion of the legislature, which was to elect two senators to the congress of the United States. The democratic party, which for twenty-five years controlled Montana, whose leaders were among the wealthiest and most enterprising citizens, naturally were averse to see the sceptre passing from their grasp,[19] while the republicans, having wrung victory from their powerful held[20] by the hardest, were equally determined not to lose the ground heretofore gained, but to add to it the choice of United States senators. The election of representatives was, therefore, the field on which the hardest battle was to be fought.

The most serious charge brought against the republicans previous to election was, that the sixteenth legislature, which was republican, had passed a registration law, which they denominated “an infamous thing,” although at the time it was passed both democrats and republicans had voted for it. Now it was called an act to disfranchise the farmers, miners, and stockmen of Montana, who were, nevertheless, counseled to register, and thus rebuke the party, which enacted the law.

On the other hand, the republicans claimed to be in possession of information that in one county a large number of miners who had been brought in from abroad had been furnished with declarations of intention to become citizens, which would entitle them to vote, and were instructed to vote for certain candidates, These persons, holding questionable certificates, could, under the registration law, be challenged, and if challenged, the law required the voter to produce his qualification. Several hundred challenges were filed on the ground of the issuance of illegal certificates.

This was the position of affairs when the election took place, which resulted, if the returns as first announced were correct, in a democratic majority in the legislature of from three to five. But now the republicans refused to accept the count in Silver Bow County, alleging that in one precinct, which returned 174 votes, 171 were democratic, and that these 171 were instructed by their employer to vote that ticket or be discharged; also that the count in this precinct was illegal, being done by the board of judges of election in secret, and certified to by the county clerk, who had no authority in the matter. The canvassing board threw out the vote of this precinct, which action gave the republicans a small majority in the legislature.[21] But it was not only the democrats who were accused of taking dishonorable means to insure a majority. They also complained that in one county, at least, the republicans had counted votes which should have been thrown out.

The action of the county canvassing board in throwing out the precinct accused of fraud caused the democrats of Silver Bow county to procure the issuance of a writ of mandamus by Associate Justice De Wolfe of that district, who was himself a candidate for the chief-justiceship on the democratic state ticket, which was served upon the board immediately after their rejection of the returns, requiring them to be counted. This command being disobeyed, there began one of the most stubborn political contests ever witnessed in a northern state, in which the canvassing board of Silver Bow County finally obeyed a peremptory mandate of the court, but not until after the state canvassing board had completed its labors with the disputed precinct left out. The result of this “muddle,” as the press very properly named it, was that there were two sets of representatives from Silver Bow, one with state-board certificates, and the other with certificates from the clerk of Silver Bow County; one making the house democratic, the other making it republican.

Judge De Wolfe was said by one party to have dragged his judicial ermine in the mire, and the republican newspapers held up to public view the iniquity of a combination between the Northern Pacific railroad and the “big four” of Montana, by which the Montana capitalists expected to get into the United States senate, and the railroad expected to secure the mineral lands in its grant through their influence; while the democratic papers denounced the outrage perpetrated upon the party by the attempt of the republicans to “steal the state of Montana.”

Some fear was entertained that the contest over the election would delay statehood, but as there was no doubt of the acceptance of the constitution, President Harrison, on the 8th of November, issued his proclamation admitting Montana into the union. The news was received at 10:40, a. m., by telegraph from Secretary Blaine. There was no public demonstration of joy, and no parade accompanying the inauguration of Governor Toole. Judge Sanders, police magistrate of Helena, administered the oath of office to Chief Justice Blake, in the police courtroom, in presence of few witnesses, at 12:30 o’clock of the 8th. A despatch had been sent to Governor White at Dillon, who could not, however, arrive to turn over the office to his successor before the 9th; but Toole was inaugurated at two o’clock in the governor’s office, in the presence of a number of citizens, the oath being administered by Chief Justice Blake.[22] After half an hour of receiving congratulations, Governor Toole telegraphed Secretary Blaine of the oath-taking, and entered upon his duties as executive of the state of Montana, his first official act being to issue a proclamation convening the legislature on the 23d of the month.

Montana never having had a capitol building, there had been certain halls and rooms in Helena’s superb courthouse fitted up for legislative uses by the territorial secretary in territorial times. But when republican State Secretary Rotwitt applied to the county commissioners for possession of the rooms, he was refused, and the rooms were let to democratic Governor Toole. Further, the chairman of the board of county commissioners pocketed the keys and placed a guard in the halls, while Governor Toole issued a proclamation on the 22d declaring that only members of the legislature with county certificates would be admitted to the hall, to which he, by his agents, held the key. Then State Auditor Kinney, whose duty it was to call the house to order, having been refused the keys by the commissioners, issued a notice to the members of the House of Representatives calling upon them to meet in the Iron block, on Main Street, at noon on the 23d, which was Saturday.

At the appointed hour the republicans met in the place indicated by the auditor, and the democrats repaired to the courthouse. The republicans had thirty-two members, two more than a quorum, and were called to order by the auditor, sworn in by Chief Justice Blake, and their organization perfected, A. C. Witter of Beaverhead County being elected speaker. The democrats also organized, and elected C. P. Blakely of Gallatin speaker, the members being sworn in by a notary public, the doors being guarded to admit no one not holding a certificate of election from county clerks, although, according to the constitution adopted by the people, the state board only had authority to issue certificates of this election, the validity of the action turning upon the opinion of the courts, not yet obtained, as to the moment when the provisions of the constitution went into operation, whether on the day of adoption, or the day of admission into the union.

The senate met at the courthouse, except the democrats, who absented themselves, and as the senate consisted of eight republicans and eight democrats, there was no quorum. Lieutenant Governor Rickards called the senate to order, and the eight members present were sworn in by District Judge W. H. Hunt,[23] after which they adjourned to the 25th. In a caucus that evening, the republicans, on their part, determined to stand on the proposition that only such as were found to be members by the state canvassing board were entitled to seats in the legislature, and that all power to determine further rights resided wholly in the two branches, and not in the governor. On the 25th, both lower houses sent committees to the governor with information of their organization, but the republicans were told that since he had designated in a proclamation the place of meeting, and they were not there, he could have nothing to say to them. The rival body was recognized, and adjourned for the day.

No change in the position of legislative affairs occurred for some time. The republican senators continued to meet without a quorum, the democrats refraining from taking the oath of office in order to avoid being compelled by the sergeant-at-arms to come in. The two separate lower houses met at their respective halls, unable to do more than make a pretense of business, while the wheels of government were firmly blocked, and the state remained unrepresented in the national senate. Thus matters stood for two or three weeks, when legal process was resorted to as a means of convening the senate, and a joint conference was obtained on the 12th of December, when it was agreed that on the 16th the democrats would come in and take their seats. Accordingly, on that day these senators appeared, and were sworn in by the chief justice. Immediately after the adjournment of the senate, the same day the sergeant-at-arms of the democratic lower house delivered written invitations – warrants they were called – to all the members of the republican house, save the five from Silver Bow county, to meet with them at the courthouse, and organize into a legal house of representatives. These invitations were not accepted.

On the 17th Governor Toole sent his biennial message to the legislature, as constituted with a senate not yet permanently organized, and no certain quorum in the lower house. It was read and laid on the table in the senate, and by the democratic house referred to committees, as usual. It contained, besides the information and recommendations usual in a message, regrets at the existing complication, but advice to his party to stand by their colors, it being better the deadlock should continue than that any principle of free government should be imperiled, or any right of American electors sacrificed.[24]

For three days the republican senators endeavored to agree with the democrats upon a set of rules and permanent organization, but without success. On the 19th, a resolution was offered that a plurality vote should be sufficient to elect, which, after a warm debate, was carried, and officers elected by a strict party vote, the democrats refusing to take part in the election, and finally leaving the hall. As the senate was low organized, and as the republicans under their organization had a quorum, that party considered the deadlock broken, and the governor was informed that they were ready to transact business.

But now again the question of rights was taken into court, a member of the republican house from Silver Bow presenting his bill for mileage to the state auditor, which was refused settlement. Legal advice was taken, and a writ of mandamus was issued by District Judge Hunt to compel the auditor to audit the bill, or appear in court and show cause why he did not do so. A decision in this case would necessarily involve a decision upon the legality of the Silver Bow election. All the quibbles of the law were resorted to on both sides, the auditor finally taking refuge apparently behind the statement that he could not pay bills for which no money had been appropriated. The decision of Judge Hunt, which was rendered January 2, 1890, while it carefully avoided the question of the authority of the state canvassing board, declared that upon the proposition in dispute as to whether the auditor might issue a certificate to a state officer where there was a legal claim, but no appropriation to pay such officer, the law was clear that he might. And the court found that the relator’s petition upon every point but the one by the court decided was admitted, and sufficiently proved by papers apparently regular to be true for the purpose of securing such certificate as prayed for, and that the writ of mandate must be peremptory. This decision was a victory for the republicans, but it brought about no change in the legislative situation.

The chief care now was to elect two senators. Before the assembling of the legislature, the men popularly mentioned who might appear as senatorial candidates were William E. Cullen, Samuel T. Hauser, C. A. Broadwater of Helena, Paris Gibson of Great Falls, W. W. Dixon and G. W. Stapleton of Butte, and Marcus Daly of Anaconda, democrats; and W. F. Sanders, Lester S. Wilson, T. C. Power, C. S. Warren, Judge Burleigh, I. D. McCutcheon, and Lee Mantle, republicans. From this abundance of good material it should have been easy to choose men with whom the people would be satisfied. But the party, and not the state, were being considered, and the election of senators which should be the choice of a joint convention was hopeless. On the 1st of January the republican house and senate elected W. F. Sanders United States senator on the 1st ballot. On the following day, T. C. Power was chosen on the second ballot. The democrats chose Martin Maginnis and W. A. Clarke. Thus was presented the remarkable spectacle of a state government willfully obstructed by its legislators elect, and sending a double representation to the highest branch of the national legislature. None could be admitted without an investigation.

An equally remarkable and more pleasing spectacle was that of a free people tranquilly regarding the struggle, satisfied that, however it terminated, a remedy would be found for the evils resulting, and even that their rights might be more securely guarded in the future for this outburst of rebelliousness.

Montana, like Washington, is richly endowed by the general government. Besides the 16th and 36th sections, devoted to common-school purposes, and not to be sold for less than ten dollars per acre, fifty sections of land were given for public buildings; five per cent of the sales of public lands for schools; seventy-two sections for university purposes, not to he sold for less than ten dollars per acre; 90,000 acres for the use and support of an agricultural college; for scientific schools, 100,000 acres; for normal schools, 100,000 acres; for public buildings at the capital, besides the fifty sections, 100,000 acres; and for state, charitable, educational, penal, and reformatory schools, 200,000 acres. With all this, her various resources, her people, and her mines, great is Montana.[25]

Footnotes

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  1. The delegates were:
    Robert Smith and Joseph A. Brown, Beaverhead County
    T. K. Collins and W. H. Hunt, Choteau County
    C. W. Savage, Wm Van Gasen, and S. R. Douglass, Custer County
    J. F. Malony,
    Dawson; J. C Robinson, L B. Waterberry, and Joaquin Abascal, Deer Lodge County
    S. W. Langhorne, R. P. ”ivion, G. O. Eaton, F. D. Pease. and E. F. Ferris, Gallatin County E. McSorley and N. Merriman, Jefferson County
    Matt Carroll, J. K. Toole, C Hedges and Steele, Lewis and Clarke County
    H. S. Howell and J. E. Callaway. Madison County
    W. J. McCormick, W. J. Stephens, R. B. Catlin and R. A. Eddy, Missoula County
    J. F. McClintock, James Fergus, and W. F. Haas, Meagher County
    Thomas Napton, W. Y. Pemberton, W. A. Clark, Marcus Daly, J. C. Thornton and Francis Medhurst, Silver Bow County
    F. M. Proctor and F. M. Greene, Yellowstone County
    Walter Cooper and A. F. Burleigh, 1st judicial dist;
    W. W. Dixon and James H. Mills, 2d judicial dist;
    W. B. Hundley and T. 0. Power, 3d judicial dist.
    W. A. Clark was elected president.
  2. The other candidates nominated in convention were, M. A. Meyendorff of Helena, Hiram Knowles of Butte, Caldwell Edwards of Gallatin, George O. Eaton of Gallatin, and M. J. Learning of Fort Benton. The names of other republicans mentioned in connection with this convention were, George Irvin of Silver Bow, Henry N. Blake of Madison, J. V. Bogert of Gallatin, Charles H. Gould of Custer, I. Rotwitt of Meagher, I. D. McCutcheon of Lewis and Clarke, Orville B. O’Bannon, T. H. Carter, and Alex. C. Botkin.
  3. Montana Territorial Appointments 1864-1888
  4. The councilmen elected in November 1886 were:
    G. L. Batchelder, Beaverhead County
    E. Cardwell, Jefferson County
    T. E. Collins, Choteau County
    R. O. Hickman, Madison County
    S. L. Holliday, Gallatin County
    W. B. Hundley, Lewis and Clarke County
    Wm. Kennedy, Missoula County
    J. K. Pardee, Deer Lodge County
    J. E. Rickards, Silver Bow County
    W. H. Sutherlin, Fergus and Meagher
    J. J. Thompson, Custer
    E. C. Waters, Dawson and Yellowstone County.

    The representatives elected were:
    W. W. Alderson, F. K. Armstrong, C. W. Heffman, Gallatin County
    H. N. Blake, Madison County
    L. A. Brown, Beaverhead County
    J. W. Buskett, Jefferson and Lewis and Clarke County
    T. L. Gorham, William Muth, Lewis and Clark County
    C. W. Hanscomb, Silver Bow County
    E. N. Harwood, Yellowstone County
    J. M. Holt, E. H. Johnson, Custer County
    J. E. Kanouse, Fergus and Meagher County
    Lee Mantle, William Thompson, Silver Bow County
    T. C. Marshall, Harrison Spaulding, Missoula County
    J. M. Page, Beaverhead and Madison County
    C. R. A. Scobey, Dawson County
    J. F. Tay lor, Choteau County
    Jacob Titman, Fergus and Meagher County
    J. R. Toole, M. W. White, Deer Lodge County
    Enoch Wilson, Jefferson. Auditor’s Rept., 1886, 41.

  5. Montana had not, like Washington and Idaho, provided for a territorial university. Two reasons seem to have operated to account for this neglect by a people so enterprising: one, the heavy indebtedness of the counties, which, in 1888, amounted to $1,500,000; and the other, that a large amount of money was annually expended upon the educational system of the territory, which provided excellent public schools. It was thought that the government buildings at Fort Ellis might serve for the foundation of a university. The members of the county teachers’ institute, which was held at Missoula in 1889, pledged themselves to use their best endeavors to secure its location at that place, giving as their reasons that the climate was unexcelled in the state, and that the university lands were located in that county, with other considerations, such as the fact that Missoula was entitled to one of the state institutions.

    The founder of Missoula was C. P. Higgins, who was born in Ireland in March 1830, and received a business education in the United States. He enlisted in the U. S. army at the ago of 18 years, serving 5 years in the dragoons. He was a member of the Gov. Stevens expedition in 1853, assisted in the first survey of the N. P. R. R., and was with Stevens when be made his treaties with the Blackfoot, Flathead, Coeur d’Alene, and Spokane tribes. In 1860, he settled in Hellgate valley, near the present site of Missoula, and engaged in trade. In 1865, he located the town, and removed to it, in company with Worden, they erecting lumber and flouring mills. In 1870 they opened a bank, of which Capt. Higgins is president. He is also interested in horse raising, and owns several valuable farms and mining properties. He married, in 1862, Miss Julia P. Grant, and has 9 children.

    The first convention of the Montana state teachers’ association was held at Dillon, in Beaverhead County, Dec. 26-28, 1889, Mrs. H. S. Simmons, of Helena, president.

  6. The commissioners appointed were, Newton W. McConnell and B. Platt Carpenter, of Lewis and Clarke County, and F. W. Cole, of Silver Bow County. Mont. Jour. Council, 1889, 307.
  7. The proposition came from the governor in his message to the legislature. The reply of the committee to whom this part of the message was referred was, first, that there was not time to make a creditable collection, the mines being covered with snow at that season. But the chief argument was that while Montana had been proven to be the greatest producer of the precious metals of any of the states or territories; and while every honest laborer and capitalist would be welcomed to the territory, the United States prohibited any alien from investing in mining properties during territorial dependency. What, then, would be the use of going to the expense of making an exhibit it Paris, when foreign capitalists knew they were debarred from investment? This appears a very petty spleen, especially as state government was anticipated, when alien mine purchasers would be desired, and might be procured by an expenditure of $20,000.
  8. Six petitions were sent from Jefferson County, aggregating 366 names, – two from Madison, with 65 names attached; four from Deer Lodge, containing 238 names; and five from Silver Bow, with 130 names – all desiring a law of congress settling the doubt as to the title to mineral lands in the odd sections within railroad limits. Mont. Jour, House, 1889, 197. Butte County also sent two petitions of 65 names.
  9. The claim of the N. P. R. R. was, that if a mine should be discovered on its land, the burden of the proof that the land was more valuable for its minerals than for anything else should rest upon the claimant, and not upon the railroad. If the road, it says, is to be compelled to surrender its title to any land because some one calls it mineral land, the titles to a vast amount of property between Duluth and the Pacific coast would be imperiled. The company claims that if a man wishes to locate a mine on any part of its granted lands he must furnish absolute proof that it is more valuable as mineral than as agricultural land. Portland Oregonian, Nov. 4, 1889. It is easy to see how Montana, in which the N. P. R. R. owns 19,000,000 acres of land, much of which is undoubtedly mineral, will, without the intervention of congress, become involved in endless litigation.
  10. The oath taken by the Montana legislature, and designed to prevent corruption in that body, was as follows: “I do solemnly swear that I will support, protect, and defend the constitution of the United States, and the organic act of the territory of Montana, and that I will discharge the duties of my office with fidelity; that I have not paid or contributed, or promised to pay or contribute, either directly or indirectly, any money or other valuable thing, to procure my nomination or election, except for necessary and proper expenses, expressly authorized by law; that I nave not knowingly violated any election law of this territory, or procured it to be done by others in my behalf; that I will not knowingly receive, directly or indirectly, any money or other valuable thing, for the performance or non-performance, of any act or duty pertaining to my office, other than the compensation allowed by law. Montana Jour, House, 1889, 2.
  11. W. A. Clark, democrat was opposed to Carter. The vote was 22,468 for Carter, and 17,360 for Clark.
  12. Montana Constitutional Convention Members 1889
  13. Montana Constitutional Convention Members 1889
  14. Montana Constitutional Convention Members 1889
  15. All charters or grants of exclusive privileges under which corporations had not organized or commenced business before the adoption of the constitution were annulled. No charter of incorporation should be granted, ex-tended, or amended by special law, except these under the control of the state; but the legislature should provide by general law for the organization of corporations to be thereafter created, which law should be subject to repeal or alteration by the same body, which should also have power to alter, revoke, or annul any existing charter whenever, in its opinion, such corporation a was injurious to the citizens of the state. In elections for directors or trustees of incorporated companies, every stockholder shall have the right to vote in person or by proxy the number of shares owned by him in such manner, as he should see fit.

    All railroad, transportation, and express companies were declared common carriers, subject to legislative control; were compelled to connect with railroads of other states at the state boundary, to permit intersecting roads to cross their lines, and were forbidden to consolidate with any parallel line, or unite its business or earnings; nor should any officer of one transportation company act as an officer of any other such company having a parallel or competing line. Discrimination was forbidden; but special rates might be given to excursionists, provided they were the same to all persons. No transportation company should be allowed, under penalties to be prescribed by the legislature, to charge or receive any greater toll for carrying passengers or freight a short distance than for a longer one; nor should any preference be given to any individual, association, or corporation in furnishing cars or motive power, or for the transportation of money or other express matter.

    No railroad, express, or other transportation company in existence at the time of the adoption of the constitution should have the benefit of any future legislation, without first filing in the office of the secretary of state an acceptance of the provisions of the constitution in binding form. The right of eminent domain should never be abridged, nor so construed as to prevent the legislative assembly from taking the property and franchises of incorporated companies, and subjecting them to the public use in the same manner as the property of individuals; nor the police powers of the state be abridged or so construed as to permit any corporations to conduct their business in such a manner as to infringe the equal rights of individuals, or the general well-being of the state.

    No corporation should issue stocks or bonds, except for a real consideration in labor, property, or money, and fictitious issues of stock should be void.

    The stock of corporations should not be increased except in pursuance of a general law, nor without the consent of a majority of the stockholders. Foreign corporations must have one or more known places of business, and an authorized agent or agents upon whom process might be served, and should not be allowed to exercise or enjoy greater rights or privileges than these enjoyed by other corporations created under the laws of the state. It was made unlawful for any corporation to require of its employees, as a condition of their employment, or otherwise, any contract or agreement releasing the company from liability or responsibility on account of personal injuries received by them while in their service by reason of the negligence of the company or its agents, and such contracts were declared void. No incorporated or stock company, person, or association of persons, in the state of Montana, should combine or form what is known as a trust, or make contracts with persons or corporations for the purpose of fixing the price or regulating the production of any article of commerce, or of the product of the soil, for consumption by the people. The legislature should cause adequate penalties to be enforced to the extent, if necessary, of the forfeiture of their property and franchises, and in the case of foreign corporations, prohibiting them from carrying on business in the state.

  16. It is impossible in the limits to which I am confined to give a more extended review of the Montana constitution, only some of its chief features being selected as instances of the sagacity of its authors, which is everywhere apparent.
  17. T. C Power was born at Dubuque, Iowa, in 1839, and received his preparatory education in that state, which was completed at Sinsiuiwa Mound college, in Wisconsin, where he studied engineering and took a scientific course. From 1858 to 1862 he was engaged in teaching, putting in his summer vacation by surveying in Iowa and Dakota. He followed surveying for several years, trading meanwhile in land-warrants until 1866, when he begin sending merchandise to Montana, locating himself permanently at Fort Benton in 1867, where he was in merchandising, forwarding, and freighting business until 1874, when he built the steamer Benton in company with I. G. Baker and others, which they loaded in 1875 at Pittsburg for her long voyage. In 1 870 they built the Helena and in 1878 the butte, burned in l883. In 1879 they purchased the steamer Black Hills, Mr Power introduced the first reapers and mowers in Montana. He had a business house in Bozeman, and in 1878 established a stage line from Helena to Benton, and has been a successful stock-raiser. He was a member of the first Constitutional Convention of 1884. He removed to Helena in 1876.
  18. Carter’s majority was 1,648; Toole’s, 754; Rickard’s, l,386; Rotwitt’s, 1,584; Haskell’s, 604; Hickman’s, 1,293; Kinney’s, 1,015; Gannon’s, 189; Blake’s, l,455; De Witt’s, 473; Harwood ‘s, 871; Kennedy’s, 1,573. It should be remarked that these are approximate figures, the election being contested; but near enough to show that the state went republican.
  19. The names of Marcus Daly, S. T. Hauser, W. A. Clark, and C. A. Broadwater, were frequently associated as managers of the Democratic Party in Montana, and during this election their owners became known as the ‘big four.’ The Butte Inter-Mountain says of them: ‘These four men are the democratic party in Montana. They have kept it in their power when they wanted to, and when they fell out, the party went to the dogs to the music of 5,126 republican majority. They are very wealthy men. There is nothing that can be said against them personally Every one of them came up from the ranks by superior merit and hard licks. Each has had the control of large enterprises and of considerable bodies of men. Accustomed all their successful business lives to handle men, to expect obedience, to en-force discipline, these four men have carried into the politics of Montana the ideas which have been ingrained by their business experience. There is the evil. Messrs. Daly, Hauser, Clark, and Broadwater are not leaders in their party. They are autocrats – bosses of the strongest type. It is only natural that they should be so, but that does not make the situation any the less unfortunate. The theory of the millionaire employer that he can command the suffrages as well as the services of the employed is bad; and attempts to carry out such a theory are to be condemned, whether they occur in Pennsylvania or Montana.
  20. Marcus Daly, perhaps the largest capitalist in Montana, and manager of the Anaconda mine and smelter, was born in Ireland in 1842. He came to Montana in 1876, and was appointed general manager of the Alice silver mine at Butte, after which Haggin and Tevis made him manager of the Anaconda mine. He is a practical miner and assayer, and an unerring judge of mines and mineral lands. He was elected a member of the constitutional convention of 1884. Even the republican papers admitted Daly’s greatness of character as well as of fortune, and were loth to connect him with the alleged frauds in his district. Anaconda Review, Sept. 12, 1889.
  21. The state board consisted of Governor White, Chief Justice Blake, and Secretary Walker.
  22. Montana Justices 1886-1889

    The office of attorney general was created by an act of the extra session of the legislature of 1887, and it was provided that the governor should appoint this officer by and with the consent of the council. The governor made a nomination, but the legislature adjourned without having ratified it. The first term of the supreme court after the adjournment of the extra session was Jan. 1888, and the county attorneys being exempted by the new law from appearing as counsel for the territory in the supreme court, the governor commissioned William E. Cullen of Helena to act as attorney -general until the close of the next regular session of the legislature, in 1889. Gov, Mess, 1889, 20-21.

  23. In district No. 1, Lewis and Clarke County, W. H. Hunt, R., was elected over George F. Sheldon, D., by a majority of 263.

    In district No. 3, Deer Lodge County, Theodore Brantley, R., was elected over David M. Durfee, D., by a majority of 270.

    In district No. 4, Missoula County, C S. Marshall, R., was elected over W. J. Stephens, D., by a majority of 96.

    In district No. 5, Beaverhead, Jefferson, and Madison County, Thomas J. Galbraith, R., was elected over Thomas Joyes, D., by a majority of 158.

    In district No. 6, Gallatin, Meagher, and Park County, Frank Henry, R., was elected over Moses J. Liddell, by a majority of 223.

    In district No. 7, Yellowstone, Custer, and Dawson County, Walter A. Burleigh, R., was elected over George R. Milburn, D., by a majority of 73.

    In district No. 8, Cascade, Choteau, and Fergus County, C. H. Benton, R., was elected over Jere Leslie, D., by a majority of l9l.

    In district No. 2, Silver Bow County, the election being contested, and Judge De Wolfe having commanded the disputed precinct counted in, John J. McHatton, democrat, was sworn in as well as the republican candidate, and two courts were set in motion. Subsequently, to end the contest, the governor appointed McHatton. The constitution abolished probate courts, which was felt by some counties as a serious check upon their business.

  24. Special telegram to the Portland Oregonian, Deo. 18, 1889.
  25. There are few early books upon Montana, because in early times it was not much visited, except by miners, who thought little of anything but gathering up the season’s spoils and hastening back to home and friends in the east, or who roamed away to newer gold-fields on every fresh excitement. The Montana newspapers contain an unusual amount of good material in descriptive and statistical matter furnished by their editors and correspondents. In 1857 G. C. Swallow, at the request of Governor Smith, made a report upon the resources of the country, which was mentioned in the Virginia City Post, Oct. 19, 1867. Meagher visited every part of Montana, and wrote his ‘Rides through Montana for Harpers Monthly, 1867. Potts wrote excellent messages on the condition of the country. Military men contributed not a little to eastern journals concerning the unexpected excellences of soil and climate in Montana, of whom Brisbin was one of the most interested. Mullan, from whom I have already quoted as an authority on Washington and Idaho, also mentions Montana briefly in Miners’ and Travelers’ Guide. J. Ross Browne, in his report on the Mineral Resources, gives a curtailed history of the discovery and working of the mines of Montana; Goddard, in his Where to Emigrate, 1869, gives reports upon the agricultural and mining resources of Montana; in Hall’s Great West, 1864, 47-54, is a mention of Montana’s resources; Fry’s Guide Across the Plains contains no more; the Montana Statistical Almanac and Yearbook of Fact, published by Bassett, Magee, and Company of Helena in 1869, was a valuable collection of early historical matter; Fishers Advertising Guide, 1869, contained sketches of the principal towns in the country; Camp’s American Yearbook, some remarks on the mineral resources of the same, p. 500; Richardson’s Beyond the Mississippi, some travelers’ tales and observations; E. W. Carpenter, in the Overland Monthly, ii., 385, gives a fair account of Montana as it appeared to him at that period. I have already quoted E. B. Neally, who wrote an article for the Atlantic Monthly in 1866, describing a year’s observations in the country at that early period, with much ability. In 1867 A. K. McClure of Pennsylvania visited Montana, and during that year corresponded with the New York Tribune and Franklin Repository, entering into the feelings and interests of the Montanians with warmth, and writing up their politics, society, and resources with much frankness. These letters were published in a volume of 450 pages, in 1869, under the title of Three Thousand Miles through the Rocky Mountains. Dunraven, in his Great Divide, published in 1876, containing an account of a summer spent about the head of the Yellowstone, describes the Yellowstone region and national park. At the 11th session of the Montana legislature an act was passed authorizing the publication and circulation of a pamphlet by Robert E. Strahorn, which gave the first connected, well arranged, and authentic account of the physical features and material resources of the country, from which I have quoted often, for want of a better. Subsequently, Strahorn added a historical prefatory chapter, and enlarged his book, Montana and the National Park, which was republished at Kansas City in 1881, with illustrations. In 1882 Robert P. Porter, special agent of the 10th census, published his observations on the industrial, social, commercial, and political development of the west, in a volume of over 600 pages, in which he devotes a brief chapter to Montana’s altitudes, climate, and population. In 1883 E. J. Farmer published a volume of 200 pages upon the Resources of the Rocky Mountains, which naturally included Montana, devoting a dozen pages to a general statement of the resources of that country. In 1883 Henry J. Winser published an Illustrated Guide to the Northern Pacific Railroad, Remarks upon the climate of Montana, with descriptions of the military posts, may be found in Hygiene of the United States Army, published by the government in 1875; Schott’s Precipitation, containing tables of the rain and snow fall for several years; and Coffin’s Seat of Empire, 1887, published in 1866. Besides these fragmentary accounts, I have been greatly assisted by information derived from verbal and written recollections and statements here, as elsewhere, in all my historical writings.



MLA Source Citation:

Bancroft, Hubert H. Bancroft Works, Volume 31, History Of Washington, Idaho, and Montana, 1845-1889. San Francisco: The History Company. 1890. AccessGenealogy.com. Web. 23 April 2014. http://www.accessgenealogy.com/montana/formation-of-montana-state-government.htm - Last updated on Aug 19th, 2013


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