courts;" therefore, the constitution provided, in effect, where the legislature should direct the appeal from the justice court in the forcible entry case there under consideration, and we think, under like conditions, sound principles of construction and rules of logic should lead to such conclusion. The legislative provision for appeal from the justice's to the district court, as was remarked in the Caulfield Case, seemed to be directing the course of such appeals in a different path from that plainly marked out by the constitution, which, in effect, would take from the other courts that portion of the judicial power which the constitution had directed to be committed to it; and that would infringe the principle above adverted to, that the legislature has no power to abridge or divest a court of the jurisdiction which the constitution commits to it. All other cases cited from California appear to follow the Caulfield Case, and we think they rest on conditions widely distinguished from those under consideration in the case at bar.

The question here, unlike that before the California court, relates to extension of jurisdiction of the district court over a class of cases not especially mentioned in the constitution, which may arise by virtue of statutory provisions, where such provision in no way interferes with the constitutional jurisdiction of any court in the judicial system. The statute here under consideration takes no constitutional jurisdiction from any court in this state, but invests the district court with jurisdiction of a class of important cases, to come into it, by way of appeal from the action of the board of medical examiners; and other statutes on the same footing provide for other important cases to come into the district court by way of appeal from the primary action of other boards or commissioners.

It is also insisted by respondent's counsel that the appeal in question is nugatory, because no rules of practice have been prescribed in said act of the legislature to guide the district court in adjudicating that class of cases. We do not think relator's right of appeal, with such a hearing as the legislature contemplates he shall have in the district court, can be denied, because no special rules of practice to be followed therein were prescribed. On the same ground, it might be affirmed that the board of medical examiners had no power to enter upon a hearing of charges, and determine whether a physician complained of was guilty of such conduct as authorized the revocation of his license to practice medicine and surgery in this state. The act of the legislature providing for said board, and investing it with such power, does not define the procedure which shall govern such investigations before the board. No doubt the legislature contemplated that such proceedings

should be conducted in such an orderly manner as that no substantial right would be denied the accused. State v. Schultz, 11 Mont. 429, 28 Pac. Rep. 643. With how much more force, then, can it be asserted that the legislature, in placing the case within the jurisdiction of the district court by appeal, on behalf of the party feeling aggrieved, contemplated that said court, be ing wise in the law and all its analogies, would adopt such appropriate procedure in the adjudication as would vouchsafe to the accused and to the prosecution a proper hearing; and thereupon such judgment would be pronounced as the law and justice of the case would warrant on the facts shown. The case is brought into the district court by appeal, without restriction, and this would seem to contemplate that the court, thus being clothed with power to try the case, and to pronounce judgment, would People apply the appropriate procedure.

v. Jordan, 65 Cal. 646, 4 Pac. Rep. 683. For what purpose did the legislature provide that a party feeling aggrieved might appeal the case into the district court? The party appealing would have been deprived of a license to practice medicine within this state, either by refusal or revocation thereof by the board. Now, when the case is raised into the jurisdiction of the district court by appeal, was it not contemplated that thereby said court was placed in the attitude of the board of medical examiners, with power over its decision to investigate the case, and determine whether or not the appellant, under the law, ought to be denied a license, or whether such license ought to be revoked because of "unprofessional, dishonorable, or immoral conduct" in the practice of his profession? State v. Board of Medical Examiners, 10 Mont. 162, 25 Pac. Rep. 440. The statute provides that the court may revoke the license of an attorney to practice law in the courts of this state "for malconduct in his profession," (section 106, p. 620, Comp. St.;) and no special rules of practice for the institution of a charge alleged to constitute such malconduct on the part of an attorney, and the trial thereof, are prescribed in the statute, except the obvious provision that the accused shall be notified of the charge against him, and be heard in his defense; which right probably no court would neglect to provide for on behalf of the accused. In such cases a court must direct the course of its own procedure in many important respects, without special provision of statute made for those particular cases; but for that reason it would not refuse to exercise the duty and authority imposed upon it by statute.

It is further objected that the writ of mandate is not the proper proceeding here in to reinstate the case in the district court, but we are of opinion that such objection is untenable, that this proceeding is a proper remedy where a court refuses to enter

tain and adjudicate a case properly brought within its jurisdiction, and there is no objection that this case was not properly appealed into the jurisdiction of the district court. An order will be entered directing the writ of mandate to issue.

DE WITT, J., concurs.

STATE ex rel. PIGOTT v. BENTON. (Supreme Court of Montana. Sept. 5, 1893.) MONTANA BALLOT LAW-NOMINATION CERTIFICATE -PRIMA FACIE EFFECT-NONSUIT.

1. On a nonsuit, that which the evidence tends to prove will be considered as proved.

2. A certificate of nomination, required to be filed by the Montana ballot laws, (section 4,) which is regular upon its face, and filed with the proper officer, is prima facie evidence of the nomination of the person so certified.

3. The secretary of the committee to which was delegated the power to make a nomination by a political convention, who certified such nomination to the proper officer, testified that he was present at a committee meeting where the nomination was made; that meetings were held at several places, and that several committee men were present; that such nomination was decided on at several meetings, but he could not name the particular meeting at which the nomination was made, no minutes having been kept. Held, that such testimony did not overthrow the prima facie case made by the certificate of nomination. Harwood, J., dissenting.

4. A political convention delegated to a committee power "to fill all vacancies that now exist, or that may hereafter occur." The convention failed to make a certain nomination, and the committee. after the adjournment of the convention, made such nomination. that the Montana ballot law does not forbid a nomination to be so made, and that it was properly made. Harwood, J., dissenting.

Held,

Appeal from district court, Cascade county; Frank K. Armstrong, Judge.

Statement of the case by the justice delivering the opinion:

This action is one for usurpation of office. The relator alleges and proves facts which he claims are sufficient for a judgment, to the effect that respondent is not entitled to the office of judge of the eighth judicial district of this state, and that relator is entitled to said office, and that he be put into possession of the same. Code Civil Proc. c. 5, tit. 10, §§ 410-417. At the general election in November, 1892, the relator and the respondent were candidates, and received votes, for the office of district judge. The relator was regularly nominated for the office by the Democratic convention. His nomination was duly certified to the county clerk, and his name properly placed upon the official ballot as the candidate of the Democratic party. As such candidate, he received votes. These matters were all regular, and as to them there is no contention. There is also no contention that respondent was regularly nominated by the Republican convention. His nomination was duly certified to the county clerk, and his name was properly placed upon the official ballot, and votes

At the election, Pigott, Democrat, received some 1,348 votes; Benton, Republican, 1,183; and Benton, People's party, 280. Benton's vote, as Republican and People's party, together, gave him a majority over Pigott. If his People's party votes were not counted, he had not a majority over Pigott, and not a majority of all the votes cast and counted. The canvassing board counted for Benton his Republican and People's party votes. He was declared elected. He received his commission from the governor. He qualified as judge, assumed the office, and has been acting as judge down to the time of the commencement of these proceedings. The relator took the oath of office as judge, but has never acted as such. At his relation this action is commenced. He claims that respondent was not elected, but has usurped the office, and is now an intruder therein. Relator's whole case rests upon his attempted showing that the People's party votes cast and counted for Benton were illegal, and that they were illegal because Benton was not nominated by the People's party. Their alleged illegality rests upon the following facts: On September 3, 1892, the People's party convention was held. At the session of the convention no person was named by the convention as candidate for district judge. As to that office the minutes of the convention, introduced in evidence, show the following proceedings:

"McKay offered a motion of a vote of confidence in Judge Benton, of this district. Carried.

clerk and recorder of Cascade county, being called as a witness, produced the People's party certificate of the nomination of Charles H. Benton, which was filed in his office, which is as follows:

"There being a vacancy on the ticket of the political party known as the People's Party,' in the office of district judge, eighth judicial district of Mont., the executive committee of Cascade county of the People's party, did, on the seventh day of October, 1892, nominate Charles H. Benton, residence, Great Falls, Mont., business, judge of the eighth judicial district of Mont., address, Great Falls, Mont., for the office of district judge of the eighth judicial district of Mont. The nomination was made by the executive committee of said People's party, who were authorized to, and had the power delegated to them to, fill vacancies by the convention of said party, duly assembled and organized, and the cause of such vacancy in the office of district judge of the eighth judicial district was because such People's party convention did not nominate a candidate for such office. Daniel McKay, Chairman of the Executive Committee of the People's Party. Resides at Great Falls, Mont. Business, contractor. Business address, Great Falls, Mont.

"George L. Wales, Secretary of Executive Committee of the People's Party. Residing in Great Falls, Montana. Business, harness maker. Business address, Great Falls, Mont." George L. Wales, secretary of the executive or county committee of the People's party, was called as a witness by the relator. As to the nomination of Benton by the People's party, he testified as follows: "I am engaged in the harness and saddlery business. I reside at 405 First Ave. South, in the city of Great Falls. I was the secretary of the People's party convention held in Cascade county last fall, which nominated some men for county offices. Question. That was the only People's party convention held? Answer. That I was present at. Q. Will you answer the question? Was that the only People's party convention that was held? A. That I was present at. Q. I have asked you whether that was the only People's party convention held? A. So far as I know. Q. Don't you know there was not another one held? A. I can't say. Q. You were here all the fall? A. Yes, sir. Q. You were the secretary of that convention? A. Yes, sir. Q. If another convention had been held, would you have known of it? A. I think I might. Q. Were you a member of the county committee that called it? A. No, sir. Q. Were you a member of the county committee that did appoint? A. No, sir. Q. Did the convention appoint a county committee? A. Yes. (Witness shown paper.) This paper contains the minutes of the convention. (Paper marked 'Exhibit B' for identification.) These minutes were written by myself, and at the

time. No additions were subsequently made. I wrote them on two pieces of paper. I took down notes as we went along, and copied them on another piece of paper. Q. Was this the copy that you made? A. At the convention; at the time of the convention. Q. No proceedings were taken except those set forth in the minutes? A. That was the main points. Q. These were the nominations made so far as they were made, and the resolutions adopted so far as resolutions were adopted? A. Yes. I have seen the certificate of nomination which has been introduced in evidence, and which you now show me. (Witness shown the certificate of nomination already introduced in evidence.) This paper bears my signature as secretary of some executive committee. The executive committee consisted of Mr. Kay, myself, Mr. Porter, Mr. Campbell, and Williams. I be lieve they were the originals. Q. Of the executive committee? A. Yes. Q. By whom was the executive committee appointed? A. I do not know. That executive committee was not appointed by the county convention. Q. And you do not know by whom it was appointed? A. I was not present at the time, and I do not know by what authority the gentlemen named assumed to act as the executive committee, not being present at the time the committee was created. Q. Were you present at any meeting of the committee at which Judge Benton received the nomination? A. Yes, sir. Q. Where was that meeting held? A. At several places. Q. State the places. A. Sometimes one place, and sometimes another. The first was in the convention. Q. That was not the committee meeting. Confine yourself to this meeting of the alleged executive committee that professes to have nominated Judge Benton. A. We met sometimes in McKay's office. Q. Who met at McKay's office, and when? A. I did not keep the dates; we met too often. We met at McKay's office as an executive committee. Mr. McKay, Campbell, Porter, and sometimes Holmes were present; at other times, different members. Q. I would like to know something about this particular time. A. I can't say. Q. Were you ever present at any meeting of the executive committee at which a vote was taken or resolutions adopted providing for the nomination of Judge Benton? and I will ask you next where it was, if there was such a meeting? A. No, sir. Q. Then it is a fact, or is it a fact then, that the information which you had which led you to sign this certificate of nomination concerning any action taken by the executive committee was conveyed to you by hearsay, that is, by some person who professed to be present? A. By the members of the committee. Q. Which members? A. McKay, Porter, and Campbell." Witness continuing: "I signed that document—this certificate-at the courthouse here in Judge Benton's office. McKay, myself, Holmes, and Judge Benton were present at that time.

I can't say who prepared the document for execution. It was not prepared by Judge Benton in my presence. I believe that this meeting took place in Judge Benton's office, when this paper was signed, on the 17th day of October, which was the last day that the certificate could have been filed. I know that a certificate of nomination is required to be filed by law 20 days before an election, and this was the last day, as I figure it, upon which a certificate might be filed. Myself, Holmes, and McKay were present when it was signed, and we came to be present at the meeting. Knowing that the nomination had not been put in, Mr. Holmes sent for me, and told me that the time was up, and we would have to put it in. Q. You came up there because Mr. Holmes called you? A. I expected to be called upon whenever the document was ready. I was notified by Mr. Holmes to come down with McKay. McKay came to the store after me. He dropped into the store, and told me to come up some time."

Cross-examination: "Question. You speak of the original committee, I believe, in reply to Mr. Shores,-the executive committee. Was any one added to that committee after the convention, and, if so, who was it? (Relator objects to the question as incompetent. No authority was given by the convention to make any change in its committees.) Answer. Mr. Holmes, who lives here in Great Falls. Q. Then I will ask you if Mr. Holmes was a member of that committee at the time of nomination of Judge Benton. A. He served as such. It is rather a difficult question for me to answer whether I had any notice to be at that meeting which nominated Judge Benton, because we had so many meetings. I know of several meetings where Judge Benton's name came forward. Q. Was he nominated more than once? A. It was decided on several times. Q. You may state whether you were present at a meeting where it was decided that he should be the nominee of the People's party. A. Yes, si. Q. Who else was present? A. Mr. McKay, Porter, and Campbell. There may have been others around. I know we were there. I concurred in this nomination, and signed the certificate."

Redirect examination: "It was reported to me that Holmes was added to the executive committee. I was not present at any meeting where he was appointed, or when anybody appointed him or added him. I do not know who had got added, except as somebody told me who had been added to the executive committee. I was informed of it, and he served as such. That is all I know about it. I do not know who appointed him. I do not know whether McKay appointed him. There was a meeting one time, at which McKay, Holmes, and myself were present, at Dan. McKay's office. I happened to go there because we had a regular, not a regular meeting, but an irreg

ular meeting. I did not happen to be there. We went there for a purpose. We were notified by Mr. McKay. He met me on the street, and said, 'Come over to my office; meeting to-night.' That is all he said, and I understood it, and where the meeting was to be held, but I did not know what it was for. I went down to McKay's office at that time. Question. How long was that before the certificate of nomination was made? Answer. From September 27th down to election day. Q. You were there all that time? A. No, sir. Q. I am asking you how long this meeting was held prior to the time of making this certificate of nomination. A. I cannot tell; there were so many meetings. Q. There is one particular meeting about which you have testified when you and three others were there. When was that held? A. I can't say. No minutes were kept. This was before the certificate was filed. May be two or three weeks, or it might have been a month, before. Q. Do you mean to say that you have no recollection upon the subject? A. No date. I can't tell the date. We kept no minutes of our meetings. The other business that we did was, we discussed finance. Q. Did you make up your minds to sell the nomination for the People's party? (Defendant objects to the question; that it is immaterial and irrelevant, and not an examination in chief.) Mr. Shores: I insist upon the question, and ask, further, did you at that time determine to sell the nomination, and fill in the nomination, including the office of district judge, clerk, and recorder, and so on? (Defendant objects further to the question, upon the ground that it is not justified by the pleadings in this case, and would be immaterial and irrelevant if foundation had been laid, which objection was sustained by the court, to which ruling of the court in sustaining said objection the relator then and there duly excepted at the time.)" Witness continuing: "Q. Who at that meeting, if anybody, proposed that Judge Benton be nominated for this office? A. I think the whole of them present spoke of it. Q. Was it at that meeting determined to nominate him? A. I can't say whether it was at that meeting fully determined. Q. Do you mean to say that at that meeting the subject was discussed, and favorably discussed? A. It was always favorably discussed. Q. Let us have a definite answer, if you can give it, to the question whether at that time and meeting held in Dan. McKay's office,-whether or not it was definitely decided to put Judge Benton in nomination. A. I can't answer that question. Q. Will you please refer to any other meeting at which the propriety or advisability of nominating Judge Benton was under consideration? A. I can't name any individual meeting. Q. I take it that you are unable to point out any particular meeting at which it was determined to nominate Judge Benton? A. Yes, sir. Q. That you

had in that and in various conferences over the matter favorable discussion,-that is about the substance of it? A. Yes, sir. Q. And, on the day that 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? A. Yes, sir. I came to the courthouse. This is about all that I know about the nomination of Judge Benton. After his appointment, Holmes acted with the committee as a member of the executive committee. was present at several meetings where Mr. Holmes was."

I

The only other witness called by the relator was Judge Benton, the respondent, whose evidence is not material to the views expressed in the opinion below. Upon the close of the testimony for the relator, the court granted a motion for nonsuit, and entered judgment for respondent, and held that he was entitled to the office of judge. The relator appeals from that judgment.

Ransom Cooper and Arthur J. Shores, for relator. B. P. Carpenter and Leslie & Craven, for respondent.

DE WITT, J., (after stating the facts.) As appears by the statement of the case above, the material point of the relator's contention was that respondent was not nominated by the People's party, and, if not so nominated, the People's party votes cast for him were illegal votes, and he had not enough legal votes to elect him. Upon a nonsuit, that which the evidence tends to prove will be considered as proved. Creek v. McManus, 13 Mont. 32 Pac. Rep. 675, and cases cited. Did the evidence on the trial tend to prove that respondent was not nominated by the People's party? The name of Charles H. Benton as candidate of the People's party appeared upon the official ballot. Section 17, p. 139, Ballot Laws, 16th Sess. 1889. That name so appeared because a certificate of nomination had been filed with the county clerk, and recorded. Id. § 4. That certificate was signed by the chairman and secretary of the executive committee of the People's party. It is held that a certificate of election is prima facie evidence of the election of the person to whom the certificate is issued. State v. Kenney, 9 Mont. 223, 23 Pac. Rep. 733. By analogy, we are of opinion that it should be held that a certificate of nomination, regular upon its face, and filed with the proper officer, is prima facie evidence of the nomination of the person so certified. Therefore, when it appeared, as it did, that such certificate of Benton's nomination by the People's party was executed and filed with the county clerk and recorder; that his name was thereupon placed upon the official ballot as candidate of the People's party; that he was voted for as such; that those votes so given him gave him a majority of all the votes cast; that he was declared elected

by the canvassing board; that he was commissioned by the proper authority of the state; that he qualified as judge, and is acting as such,-then I am of opinion that the relator entered upon this contest facing the prima facie evidence that respondent was nominated by the People's party. If re spondent was nominated by the People's party, then there is an end of relator's case. Did relator's evidence overcome this prima facie situation,-that is, did his evidence tend to show that Benton was not nominated by the People's party? The case went no further than relator's evidence. Benton was not yet before the court, on the trial, undertaking to combat testimony that he was not nominated. He was waiting for the relator to introduce evidence tending to show that alleged fact.

We will now look at the evidence to ascertain whether it tends to show that Benton was not nominated by the People's party. The district court held that it did not, and hence the nonsuit. The only witness whom relator called to establish this point in the case was the acting secretary of the Peo ple's party executive committee, namely, George L. Wales. His testimony on this point is set out in the statement of the case above, in full, as it appears in the record. It seems that this committee, as created by the convention, consisted of seven original members, Campbell, McKay, Dickinson and Porter, of Great Falls, and Marion, McLaughlin, and Gillen, of Sandcoulee. The committee was empowered to add to their number persons from other precincts. Holmes and Wales, each from Great Falls, and not from other precincts, became members of the committee, or acted as such, by some method not appearing. But, if they were added to the committee without direct authority from the convention, I cannot understand that such action would destroy the life of the committee, or nullify the authority given it by the convention. Moreover, it does not appear that it was required that the secretary of the committee should be a member thereof. I cannot understand how, if the duly-constituted members of the committee should act as authorized by the convention, their acts would be void by reason of the presence of two more persons who were not regular members of the committee, and who were not required to make a quorum or majority, which quorum or majority determined upon an act of the committee which was afterwards attacked. Now, it does not appear from the testimony that the nomination of Benton was made by a simple majority of the committee, of which majority Wales and Holmes were members. As will be plainly seen, there is no evidence that any member of the committee opposed Benton's nomination, and the evidence tends to show that all members of the committee favored the nomination.