strated. It protects political parties and electors alike. The very will and purpose of the party may be manifest by its omission to make nominations in certain cases. If I mistake not as to the course of recent events, this was notably illustrated in respect to a judicial office in the northern district of this state, and perhaps elsewhere, at the last election. But, whatever may have been the reasons which moved the legislature to so frame said statute, the provision is nevertheless too plain to admit of disputation. The legislature did not so provide as to put it into the power of a small subordinate committee to reverse the purpose or policy of the party by independent original action. After inviting and providing for the insertion of all nominations in the official ballot which any party may see fit to make through a "convention or primary meeting" of its party representatives, the law provides: "Should any person so nominated die before the printing of the tickets, or decline the nomination, as in this act provided, or should any certificate of nomination be or become insufficient or inoperative from any cause, the vacancy or vacancies thus occasioned may be filled in the manner required for original nominations. And, proceeding, the section provides that, "if the original nomination was made by a party convention which had delegated to a committee the power to fill vacancies, such committee may, upon the occurring of such vacancies, proceed to fill the same." Could language be more explicit, or the intention be more plainly expressed? It would seem not, except by reiteration; and the legislature in that way, in the same section, does explain its intention even more plainly, for, in providing for the certificate of such nomination by the committee to fill the vacancy, the law prescribes that the certificate "shall set forth the cause of the vacancy, the name of the person nominated, the office for which he was nominated, the name of the person for whom the new nominee is substituted." This could not be done where there had been no original nomination, and thus the committee undertaking to make original nominations would plainly observe that such action was exceeding its province, under the provisions of the law, and that, failing to comply with the statute, such action of the committee must be disregarded, or the law must be disregarded, in making and publishing the official ballot. This was an important question of law, ably pressed upon the consideration of the court by counsel for the people, as bearing directly upon this case because it was a fact admitted that a general convention of the People's party for the county comprising the judicial district in question was held, and that it made and certified certain nominations for offices to be filled at the ensuing election; but such convention did not nominate respondent or any

other person for the office of judge of that judicial district. However, through certain actions of respondent and others, (which will be examined below,) the name of respondent was inserted in the official ballot as the nominee of the People's party.

But, notwithstanding the law and the facts, what have the majority of this court determined by the judgment announced? The majority have determined that the committee may proceed to make original nominations in respects wherein the party convention was silent; and that it is proper for the county clerk, as a public officer, acting under the statute in this important matter, to receive and give effect to a certificate, filed by such committee, which does not and could not fulfill the requirements of the statute. By what process of treatment this extraordinary conclusion is reached must be sought in the majority opinion. I have looked earnestly and carefully there, but fail to find the law brought into view, and discussed, or its provisions even referred to in the opinion. The effort to make out that the committee in this case acted as if in the convention, and with the convention's ratification, cannot be maintained with even a specious show of reasoning without doing violence to the distinction of terms used in the statute. In that way all law can be ignored, and any conclusion reached. There was a convention. This is admitted. The convention took such action as it desired, and dissolved. It appointed a committee,-just such a committee as the statute describes; and that committee, and the alleged action thereof, long after the convention adjourned, are under consideration in this case. The statute defines and describes the convention and also the committee, and provides in plain terms what action of such committee would be recognized and published in the official ballot as the action of a political party. But the law-the statute relating to this important subject-appears not to have been discussed. Indeed, this peculiar feature of the opinion seems to have strongly impressed its author, for the questions of law involved in the case are disposed of with the observation, which I quote from the opinion as submitted to me, that "this case is full of interesting and perhaps difficult propositions in reference to the construction of the ballot law of this state. The view taken above renders unnecessary the discussion of those points. The decision in this case is placed solely upon the ground discussed hereinbefore, and all other questions are reserved." I do not find the lids of the statute book so unyielding, nor so unnecessary to be tried, nor its contents, when opened, so "difficult" and mysterious. No less remarkable, however, it seems to me, is the determination of the court in reference to the testimony introduced in the case, as shown by the record. The certificate of

nomination showing its failure to comply with the requirements of the statute was exhibited in the complaint by copy. This certificate, the majority of the court hold, is prima facie evidence that respondent was nominated by the People's party as candidate for judge of that district. No greater faith could, under the rules and principles of law universally acknowledged, be given to such certificate if it complied with the requirements of the statute. But without even noticing its infirmity in that regard, so plainly pointed out and urged by relator, the court sets this certificate down as prima facie evidence of such nomination.

Now, grauting for the further examination of the case that this certificate is, at the commencement of the trial, prima facie evidence of such action by the committee; that faith and credit and consequent weight is given to such certificates, because the law has delegated and authorized persons to certify facts for public record who, by reason of their direct personal contact with the action of the committee, in presiding over its deliberations, and ascertaining and recording its expressed will, have come into personal knowledge of the facts certified; and on the further presumption of law that a person delegated and invested by law with power to discharge a solemn public duty would not so certify without personal knowledge of the truth of the matter set forth,those are the reasons and presumptions which give the weight of prima facie proof to such certificates; and when the foundation of such presumption is removed by showing in the proper tribunal and proceeding that the certificate was made by the person appointed to certify, without personal knowledge that the matter certified was in fact true, thereby the certificate loses its prima facie weight, and is discarded as of no evidential weight. If there were no cases on this point to cite, reason alone would seem to be sufficient to draw a court to that conclusion, for what is my certificate worth as evidence if I certify that certain action has been taken without personal knowledge thereof? What is such certificate worth as evidence to support the fact if one, having solemnly certified that such action had verily been taken, upon being called and questioned under the test of an oath, is compelled to admit over and over again that he was not a witness to the matter certified, and cannot, from the basis of such personal knowledge as every court would exact before admitting the witness to testify, say that the matter certified in fact took place. Not only the simplest principles of evidence and reason discard such a certificate on that showing in a case where the facts can be inquired into, but the authority of decided cases also confirms the proposition that such certificate should be cast out of consideration, when the ground upon which faith and credit is given to it as prima

facie evidence is removed by showing that it was certified without personal knowledge of the facts set forth. The certificate of a notary public to the fact that demand of payment and protest for nonpayment of negotiable paper was made is prima facie evidence of that fact. Comp. St. p. 1077, § 1576; Smith v. McManus, 7 Yerg. 477; Browne v. Bank, 6 Serg. & R. 487. But, when it appeared that the notary certifying such alleged demand and protest did not so certify from his own knowledge, the certificate thereby lost its force as prima facie evidence to support the fact that such presentation and demand were made. Hoff v. Baldwin, 13 Amer. Dec. 385; Williamson v. Turner, 2 Bay, 410; the court observing of the notary's action in the latter case that "his own knowledge of the fact will alone justify him in making up his protest, either to send abroad into foreign countries, or in inland transactions." It will not suffice to answer that the notary must personally make the demand, because such is not the law; the demand may be made by another in the presence of a notary. This is affirmed in the cases cited above, as well as numerous other cases. In those cases, to impeach the certificate, the notary who certified was called, and from his testimony it was ascertained that he certified without knowledge of the facts set down in the certificate, and such showing condemned the certificate as worthless to evidence the facts certified. But how is the holding in the case at bar? By the opinion of the majority of this court, the certificate is proclaimed as prima facie evidence of the nomination of respondent, and held as good enough to warrant judgment for respondent, although one whom the law appoints and intrusts with the solemn duty of making a public record by certifying the nomination, as secretary of the committee, is compelled under oath to acknowledge that he was not present at any meeting of said committee at which respondent was nominated, as certified. Nor could he state the time, place, or circumstances of any such nomination by the committee.

This brings me to the point where a reference to the evidence ought to be made, and must be made principally by quotation, wherever my view differs from a majority of the court as to what the evidence shows; for it is not my purpose, by contra-assertion or negation, to dispute those conclusions set down in the opinion of the court as to what the evidence shows, and on the strength of which the court proceeds to affirm that the evidence "tends to prove that the committee nominated respondent," as represented in said certificate; but let the witnesses be introduced to contradict those affirmations and conclusions by quotation of all they say as to their knowledge of the committee's action. There is no dispute that a convention of the People's party was held at Great Falls in and for said Cascade county, which

comprises the judicial district in question; that nominations were made by said convention, but not of any candidate for district judge; that, as shown by the minutes of said convention, introduced in evidence, the convention appointed a "county or executive committee," consisting of Jeff. Campbell, D. McKay, Harry Dickerson, S. Porter, of Great Falls, Frank Marion, Harry McLaughlin, and John Gillen, of Sandcoulee; that said "county or executive committee" was empowered to add numbers "from other precincts;" that Mr. George L. Wales was secretary of said convention, but was not appointed as a member of said committee; that said George L. Wales signed and certified the certificate which was filed in the office of the county clerk, representing that respondent had been nominated for the office of district judge by said committee, as the nominee of the People's party. Mr. Wales was called to the witness stand by relator, and, having introduced the minutes of said convention, his testimony concerning the alleged nomination of respondent by said committee, in answer to questions, forms the following dialogue: [See testimony as set forth on pages 302–304 of majority opinion.] This witness was called to impeach the integrity of said certificate of nomination, by showing that it was certified 'by him without knowledge as to whether its contents expressed truth or fiction; and as usual with an unwilling witness, or one desirous of making out exactly the opposite of that which he is called to prove, he starts out with an answer affirming that he was -"present at a meeting of the committee which nominated Judge Benton;" and then, with great circumlocution and evasion, he shifts around the simple inquiry as to when and where said committee assembled, and who were present, and other pertinent inquiries, until finally he is compelled, in fidelity to his oath, to state that he was never present at any meeting of the executive committee "at which a vote was taken or a resolution adopted providing for the nomination of Judge Benton;" and, again, that "it is a fact that the information which led him to sign said certificate was the assertion of other members of the committee," and, when asked to name them, could name only three; that he was called to the courthouse, and in Judge Benton's office, on the last day for filing such a certificate, in company with only one member of said committee, together with Judge Benton and Holmes, who at the most only assumed to act as a member of the committee, and without eligibility, as known to the witness, because the committee was authorized to add members from other precincts only, and Holmes, according to the testimony of this witness, was a resident of Great Falls, and with no knowledge of any other nomination of Judge Benton by said committee, this witness signed said certificate as secretary of the

committee. Even under examination by respondent, this "secretary" of said committee, having said that he was present at a meeting of the committee "where it was decided he [Judge Benton] should be nominated," yet was unable to locate such meeting of the committee. And, again, under relator's redirect examination, this witness shifts about the one simple question with many more evasive answers, and finally closes his testimony by repeated denials of any knowledge of such a nomination by said committee in this wise: When asked, "Let us have a definite answer, if you can give it, to the question whether or not, at that time and meeting held in Dan. McKay's office, it was finally decided to put Judge Benton in nomination," he replied, "I cannot answer that question." And, again, in answer to the question, "Will you please refer to any other meeting at which the propriety or advisability of nominating Judge Benton was under consideration?" he said, "I cannot name any individual meeting." And, again, to the interrogator's observation, "I take it that you are unable to point out any particular meeting at which it was determined to nominate Judge Benton?" he replied, "Yes, sir." And, again, to the question, "And, on thẻ day this certificate was executed, you were requested by Dan. McKay to come over to the courthouse, and did so, and affixed your signature to the certificate?" he answered, "Yes, sir. I came to the courthouse. This is about all that I know about the nomination of Judge Benton." Such are the flimsy and spurious pretenses upon which said certificate is based, and such is the direct impeachment of its integrity as prima facie evidence of the facts it was made to record. Nevertheless, the majority of this court, in the light of such showing, are pleased to approve said certificate as good enough still, and to hold that such evidence "tends to prove that said committee did nominate respondent." How does it support such views to say that, if Wales knew nothing about any such action of the committee, there was still another who signed said certificate as chairman of said committee, and that he was not called also to impeach the certificate? Surely the court would be consistent in its holding, and lay no harder rule on the chairman than on the secretary, whom the law had commissioned to certify to the action of the committee; and thus, if the chairman had been called, and exhibited the same determination to make out that the committee did make such nomination, and yet was forced repeatedly to admit that in fact he knew nothing of any such action, the majority of this court, having held such want of information good enough on the part of the secretary, and that his certificate was still prima facie evidence, although he testified that he knew nothing about the facts certified, would also hold the same in respect to the chairman,-yea, that such evi

dence "tends to show that the committee made such nomination."

It appears that respondent himself lent a little assistance in reference to his alleged nomination in question here. He was called to the witness stand by relator, and his testimony is somewhat significant. He admits that he personally prepared said certiftcate representing his nomination by said committee, and also that he made the corrections appearing in said certificate by interlineation, and further said: "I was not present at any other meeting of the executive committee prior to the time of the execution of the certificate of nomination, and have no knowledge of any previous meeting having been held. I had spoken, I think, with one or two members of the executive committee, or they had spoken to me, with reference to indorsing my nomination by the Republican party; I think Mr. McKay, and Mr. Campbell, I think, was the other." This statement of respondent that he had "no knowledge of any previous meeting having been held" implies that he considered or pretended to consider the meeting at his office when said certificate was executed a meeting of the committee, although only one member of the committee was present, with himself, Wales, and Holmes, on that occasion. But those were there who had been called to respondent's office to sign said certificate when the last hour for filing it was very near at hand. This coincides with Wales' testimony. They had to consider that a meeting of the committee if they pretended that any meeting of the committee sanctioned the nomination certified, because they could not point to any other meeting whatever at which respondent was nominated. This testimony of respondent shows, too, that he undertook the preparation of the document certifying his nomination in advance of any knowledge that the committee had invited such action from him, or any one else, by conferring such nomination upon him. But without any such knowledge, according to his own testimony, he prepared the certificate, and the parties who signed it were summoned to his office on the last day for filing it, and under his tuition, he having corrected the certificate to conform to his idea of sufficiency, it was signed and filed.

Now, no one pretends, in view of the real facts exposed on the hearing of this case, that said alleged meeting at Judge Benton's office was a committee meeting in any sense whatever. Therefore, if any such nomination was in fact made by the committee at all, it must have been at some meeting of the committee previous to the signing of the certificate, of which meeting even, much less nomination, neither respondent nor Mr. Wales, "Secretary," had any knowledge, although the secretary testifies that he was there in Great Falls "all the fall," where a majority of the committee resided, and where it is pretended such meeting was held. Under

these circumstances, should the secretary of a committee, who is to certify its action for public record, know of the meeting of the committee? Apparently not, according to the decision of this court. But consider the evidence a little further. Is it not a very singular and striking circumstance that respondent, who sought the nomination with such eagerness as to prepare his certificate of nomination, was, up to that late hour, entirely without knowledge of an event of such usual and desirable notoriety as a political nomination for an elective office, through the action of a committee, if any such action had ever been taken at all? Is it not remarkable that the "tendency of the evidence" was not strong enough to bring such knowledge to one who sought the nomination with such anxious personal solicitude,-one living right where a majority of the committee resided, and where, as it is pretended, the meeting took place, and one sustaining such intimate personal relations with the principal actors in the transaction as to have their meeting at his office, and to prepare for them the important document? Not only respondent was ig norant of any such action of the committee, but Mr. Wales. "Secretary," so full of pretended knowledge of such meeting and nomination prior to the execution of said certificate, is compelled, repeatedly, to admit that he in fact had no knowledge that what he certified was true. The circumstances connected with the consummation of a transaction or the execution of an instrument are pertinent to be shown in evidence and considered, (Code Civil Proc. § 632,) and always where the genuineness and integrity of the instrument is under inquiry.

Confronted by such circumstances, no wonder respondent besought the court for the relief of nonsuit, to escape the embarrassment of attempting to produce proof showing that the pretended meeting and nomination by the committee actually occurred. The certificate of nomination had been clearly impeached, both in law and in fact; and, therefore, in my humble opinion, when the certificate upon which respondent hung his case as being prima facie evidence of his nomination had thus been impeached, and lost all weight as evidence of the fact which it certified, nonsuit was clearly improper, without considering further circumstances. But, over and above that situ ation, the strong tendency of the proof, and the circumstances proved, was to the effect that no such committee meeting or nomination as was certified ever occurred at all. All authority agrees that we must regard as proved what the evidence offered tends to prove on considering the propriety of granting a motion for nonsuit. According to what has been shown, respondent was in a trying situation when he moved for nonsult. If it had been denied, as it should have been, because of the impeachment of the certificate, and the tendency of the evidence as showing that no such meeting or nomination ever oc