cise. This law before us disfranchises every | to another, and the necessary steps to become person too ill to attend the board of registra- registered in such cases, seems to be most untion, and unreasonably and unnecessarily re- reasonable and unnecessary; but perhaps this quires persons whose business duties, public or is within the power of the Legislature, as it is private, are outside of Detroit to return home not absolutely impossible to comply with it. to register as well as to vote, making two trips But, in relation to naturalized voters, the very when only one ought to be required. men who have probably lost their certificates, and cannot now replace them, are elderly men, who have been naturalized for many years, and have exercised the elective franchise in Detroit, without question, for upward of a quarter of a century. They have, many of them, no doubɩ, forgotten the particular name of the court in which they took out their papers; and to prove their issue by someone other than themselves would be, in some instances, impossible. A law that treats these men as men wuose oaths cannot be taken in their own interest, while it permits a native-born citizen to prove his standing as a voter by his own test niony, cannot receive my sanction, as I believe such a requirement to be not only unjust, but unconstitutional, unless applied to all. Another distinction may also be noted. A native-born citizen, becoming of age between the last day of registration an I the election, is permitted to vote; but a foreign-born citizen, who has taken out his first papers, and whose right to full citizenship or the elective franchise will ripen between the completing of the registry list and the opening of the polls, cannot vote.

This Act is also not impartial. It seems to be aimed especially at naturalized voters, and, taken all in all, was fitly characterized by one of the counsel as "an Act to disfranchise a large number of the legal voters of the City of Detroit." In providing particularly and minutely for the forms of entry in the books of registration (see § 5-8), subdivision h of section 8 provides: "h. In the column headed 'Court,' the designation of the court in which, if naturalized, such naturalization was bad, or, if a declaration of intention was made, the name of the court from which the certificate was issued, and if the applicant claims the right to be registered and vote as a naturalized citizen, or because he has declared his intention six months or more prior to the election, be must produce the proper certificate of such naturalization, or declaration of intention, or satisfactory evidence, other than by the oath of the applicant, must be produced, that the same was issued." By another subdivision of the same section there must be set down in this book the "date of papers," the time of such naturalization or the making of the declaration "as appears by the certificates, or other duly authenticated evidence." Subdivision g.

The essence of these requirements is that the naturalized voter must produce bis certificate, or show, by evidence other than his own oath, that such a certificate was issued. And it would seem that, if he cannot procure from the records of the court evidence that such a certificate was issued, or declaration of intention made, be must produce some person, besides himself, who was present when the declaration was made or certificate issued. Perhaps, under a liberal construction of the law, one who could swear that he had seen the certificate would be a sufficient witness; but how is he to testify to the date, and the particular court that issued it, or that it was genuine? Why should a person claiming to be an elector by naturalization be debarred, if he has lost his certificate, from establishing such fact by his own oath? A person may swear that he is native born, and he is not required, also, to prove this fact by someone else, before he can be registered; but, if he wishes to show that he is an elector by naturalization, he is presumed to be unable himself to tell the truth under oath, and must be corroborated by someone. The easiest way for a person of this class, wishing to cast a fraudulent vote, would simply be to swear that he was born in the United States; and in such case a perjurer is put to less trouble to get on the registry list than an honest man who desires to show that he has been naturalized, but who, unfortunately, has lost the record evidence of such naturalization. This distinction between native-born and naturalized electors is an unfair one, and, as above shown, entirely unnecessary in order to prevent fraud. Its tendency will be to disfranchise honest men, and induce dishonest men to perjure themselves. Section 13, in reference to removals from one precinct

In this minute and detailed plan of registration, with its provisions for an elaborate registry book, only two classes of voters are recog nized, to wit, native-born and naturalized. Three classes of electors, under the Constitution, are provided for, unless Indians are to be classed with the native-born citizens, without any particular designation of their own; and the male inhabitant residing here in 1850, who had declared his intention six months before an election, is to be classed with naturalized voters, and treated the same as the rest. But it is quite possible that there are persons now living in the City of Detroit who were "white male inhabitants" of this State in 1835. A man twenty-one years old then would be seventyfive now. This class were not required to be native born, nor naturalized. They were made voters because they resided here at that date. There seems to be no place for such as these in this Registry Law, unless they are native born, or can establish their naturalization. And it is by no means certain that the term "inhabitant" would not include all those who had a residence or fixed settlement and home in Michigan in 1835, although not then of age, if they have since lived in Michigan. If so, a larger number of voters would be affected by this Act, as, strictly following the law, they are disfranchised by it.

In my opinion, no Registry Law is valid which deprives an elector of his constitutional right to vote by any regulation with which it is impossible for him to comply. No elector can lose his right to vote, the highest exercise of the freeman's will, except by his own fault or negligence. If the Legislature, under the pretext of regulation, can destroy this constitutional right by annexing an additional qualification as to the number of days such voter must reside within a precinct before he can vote therein, or any other requisite, in direct

oprosition to any of the constitutional require- | trol their own local affairs, which seems to be ments, then it can as well require of the elector growing more prevalent in our legislative entirely new qualifications, independent of the bodies in this country, must, nevertheless, if Constitution, before the right of suffrage can the idea be a correct one, be exercised in reabe exercised. If the exigencies of the times son, and within constitutional limits. are such, which I do not believe, that a fair and honest election cannot be held in Detroit, or in any other place in our State, without other qualifications and restrictions upon both native born and naturalized citizens than these now found in or authorized by the Constitution, then the remedy is with the people to alter such Constitution by the lawful methods pointed out and permitted by that instrument. This dis position to hamper and abridge the rights of the people to govern themselves, upon the theory that certain communities are unfit to con

This Law being, in the respects pointed out both unreasonable and in conflict with the Constitution, and it being apparent that the Legislature would not have enacted the other portions of the Act had it foreseen that the courts would declare these parts unconstitutional, the whole Act must fall, and be held unconstètniional and void. Dells v. Kennedy, 49 Wis. 560, and cases cited; Daggett v. Hudson, 43 Ohio St. 548, 1 West. Rep. 789; Brooks v. Hydorn (Mich.) 42 N. W. Rep. 1122. The other Justices concurred.

MONTANA SUPREME COURT.

TERRITORY of Montana, ex rel. BOARD |
OF COMMISSIONERS OF CHO-
TEAU COUNTY, Respt.,

V.

BOARD OF COMMISSIONERS OF CAS-
CADE COUNTY, Appl.

(8 Mont. 396.)

1. The County of Cascade under the Act of September 12, 1887, providing that it "shall be liable for, and shall pay, the sum of $30,000" to the County of Choteau from which it was created, giving it the option to cause warrants to be issued, which, on being indorsed "Not paid for want of funds," shall bear interest, or to issue coupon bonds and sell them, cannot discharge the debt by delivery of the bonds, but if it issues the bonds must convert them into cash and pay the debt.

2. When the Legislature directs a county to pay money to another county, and directs the county commissioners to

raise it by issuing either warrants at their first general session or coupon bonds as near as may be in conformity to the General Law, 'be re'usal of the commissioners to take actior in the matter at either their first or second meeting after the direction is given constitutes a case of morey "withheld by an unreasonable and vexatious delay," and it will bear interest from he date of the second meeting at the rate of 10 per cent per annum, under Mont. Comp. Stat., § 1237. 3. When the law itself imposes a duty on county commissioners as such, and they are not appointed thereto by the county, the county will not be responsible for their breach of duty, or for their nonfeasance or misfeasance in relation to such duty.

4. Under the Organic Act of Cascade County, which imposes upon its Commissioners the duty of selecting which of two metoods stall be adopted in the payment of its indebtedness (the issuance of either warrants or bonis), and declares what they shall do when they have determined which method they will adopt, inas

NOTE.-Mandamus to enforce a public duty. A ministerial duty on the part of a public officer, In mandamus to enforce a purely public duty, the discharge of which may be compelled by mannot due the government as such, any private per- damus, is some duty imposed expressly by law, not son may move as relator. State v. Weld, 39 Minn. 426. by contract, or which arises necessary as an inciMandamus is the proper remedy to compel the dent to the office, involving no discretion in its exmayor and council of a city to execute duties im-ercise, but mandatory and imperative. State v. posed upon them as to which they are allowed no discretion. State v. Shakespeare, 41 La. Ann. —, 6 So. Rep. 592.

An alternative writ of mandamus to compel the performance of a public duty by an officer, that is coupled with the expenditure of the general fund of a county, should allege that there is sufficient money belonging to the fund that can legally be appropriated to the purpose. Miller v. State (Kan.) 2 Pac. Rep. 326.

A formal demand and refusal are not a necessary preliminary to the filing of a petition for mandamus to compel the performance of a public duty which the law requires to be done. People v. Board of Education of Upper Alton School Dist. 127 Ill. 613.

When executive officers of the government refuse to act in a case at all, or when by special statute or otherwise a mere ministerial duty is imposed upon them that is a service which they are bound to perform without further question, then, if they refuse, a mandamus may be issued to compel them. United States v. Black, 128 U. S. 40 (32 L. ed. 354). 7 L. R. A.

Whitesides, 3 L. R. A. 777 and note, 30 8. C. 579.

Mandamus is the proper proceeding when a party has a legal right to the enjoyment of which the discharge of a ministerial duty on the part of a public officer who refuses to perform it is necessary, and the party has no other adequate remedy. Ibid.

Mandamus will lie to compel the payment of warrants drawn upon a county treasurer, who had funds sufficient to pay them on their presentation. Bush v. Geisy, 16 Or. 355.

In mandamus proceedings to compel the board of supervisors to make provision for the payment of a claim previously allowed by them against the county, it is competent to set up in defense the invalidity of the claim originally, or to plead the Statute of Limitations, or both. Board of Suprs. v. Catlett (Va.) 13 Va. L. J. 611.

Mandamus to public officer; application for; real party in interest; when may issue,-see note to United States v. Hall (D. C.) 1 L. R. A. 738.

To enforce public duties, see note to Commercial U. Teleg. Co. v. New England Teleph. & Teleg. Co. (Vt.) 5 L. R. A. 161.

much as they derive their power from the law Strictly construed, this would mean money, alone and none of it comes from the County, the and nothing else. The word "collections," in County cannot be liable for interest on the debt the Act, is limited to moneys actually paid for failure of the Commissioners to take action, into the treasury, or at least actually collected. although in violation of the plain, imperative mandate of the Statute.

Rawlins v. Poindexter, 27 Miss. 64; Dyer v. Gibson, 16 Wis. 557; French v. Marsh, 29 Wis. 649. See Hedges v. Lewis and Clarke Co. 4 Mont. 280.

Messrs. Carpenter, Buck & Hunt, with taxed in a proceeding by writ of mandate to Messrs. S. H. McIntire and H. G. McIntire, for respondent:

This debt is created by virtue of the Act alone. Hence no more money can be taken from Cascade, directly or indirectly, than is ordered to be paid by the terms of the Act it-proved September 12, 1887." The transcript self.

To the County of Choteau, the said County of Cascade shall be liable for and shall pay the sum of $30,000, and to the said County of Meagher the County of Cascade shall be liable and shall pay the sum of $6,000, which said sums shall be in full of all claims and demands against said County of Cascade for or on account of its proportion of the present indebted ness of said Counties respectively; and it is hereby made the duty of the County Commissioners of the County of Cascade to cause to be issued at their first regular session to each of said Counties a warrant or warrants on the general fund of said County for the amounts to which they may be respectively entitled as aforesaid, which said warrants, if not paid on presentation to the treasurer of said County of Cascade, shall be by him indorsed 'not paid for want of funds,' and shall thereafter bear like interest as other county warrants; or said Commissioners may issue coupon bonds of said County bearing interest at not more than 6 per cent per annum, payable in seven years, and due in fifteen years, in payment of said debt, and to pay current expenses for the first year. Said bonds shall not be sold for less than par, and shall be issued as near as may be in conformity with the General Law."

As the main question presented by the demurrer depends upon the construction to be given to said section 2 of the Act to organize Cascade County, we will consider it first.

of $30,000." It thus creates a debt to be paid in money. But the Legislature, in view of the fact that a county can only raise money by taxation or the sale of its bonds, proceeds to direct how this debt may be paid: first, in the discretion of the County Commissioners by issuing warrants upon the general fund to be raised by taxation, or, secondly, by issuing coupon bonds and selling them, and thus raising the money with which to pay said debt. That the Legisla ture meant that Cascade County should sell the bonds, and pay the debt with the money thus raised, is further manifested from the provision that said coupon bonds should bear interest at not more than 6 per cent per annum, thus leaving it in the discretion of the County of Cascade to determine the rate of interest that the bonds should bear, limiting it only by the provision that the rate should not exceed 6 per cent, leaving the matter entirely within the discretion of the Commissioners to fix the interest from a nominal rate of one half or 1 per cent up to and including 6 per cent per annum. If the Commissioners should see fit, in the exercise of their discretion, to issue coupon bonds, bearing only a nominal rate of interest, which they might do under the construction contended for by the appellants, and turn said bonds over to Choteau County in kind in payment of said debt, it would practically defer payment of said debt for fifteen years, as it would be impossible for Choteau County to sell said bonds at par as provided by law. Certainly if the Legislature intended that Choteau County should receive the bonds in payment of this debt, it would not have left it at the mercy of the new County.

Said Act further provides that the bonds shall be payable in seven years and due in fifteen years, and that they shall not be sold for less than par, and that they shall be issued as near as may be in conformity with the General Law. Such a construction would present the spectacle of the Legislature solemnly declar

It is contended by the appellant that said section gives the County Commissioners of Cascade County the right to elect whether they will pay the indebtedness of their County to Choteau County by issuing coupon bonds, and turning them over in payment, or drawing county warrants upon the general fund. The question is, Have they this power under section 2? We think they have not. The Act itself does not provide that the bonds shall be turned over to Choteau County. The language used in the Act "in payment of said debt," coupled with the succeeding clause, "and to Pay Curing that in justice and good conscience as the rent Expenses for the first year," shows manifestly that the Legislature intended to put payment of the current expenses of the new County for the first year upon a like footing with the payment of the debt to Choteau County; and no one will contend that the Legislature ever meant to issue coupon bonds and turn them over in kind in payment of the current expenses of the County. The new County was to derive territory, population and property from the mother County and the Legislature, acting as a kind of pater familias between the mother and daughter, enacted that the just and equitable portion of the debt of Choteau County, which the new County should bear, was the sum of $30,000. It is true that in the absence of such legislation the new County would not be bound in law for any part of said debt. Laramie Co. v. Albany Co. 92 U. S. 307 [23 L. ed. 552]. But the Act which declared that Cascade County should pay $30,000 had the effect of converting a moral into a legal obligation, and to liquidate the accounts between them at that amount. It then became an indebtedness in as full a sense as if it had arisen by contract between the parties. The language used is "to the County of Choteau, the said County of Cascade shall be liable for, and shall pay, the sum

consideration for the territory, population and property that Cascade County might derive from Choteau County, and the relief of its taxpayers from the debts of the parent county, Cascade should be liable for and should pay to said County the sum of $30,000, and then providing that instead of paying this money it might pay it in her own coupon bonds, due in fifteen years, bearing only a nominal rate of interest, issued under a law which forbade Choteau County from selling said bonds at less than par. It seems to us that such legislation would be to trifle with the rights of Choteau County and practically declare that a debt of $30,000 now due shall not be paid for fifteen years, and that in the mean time it should bear only a nominal interest, unless said County of Cascade, of its own grace, shouid see fit to pay it at the end of seven years. The Legislature did not mean to make such a contingency possible.

If this construction of the bond clause of said Act is the correct one, then the two propositions between which an election was to be made are so unequal that there is no room for choice. It would be to paraphrase the language of the Act, which creates the liability, so that it shall read as follows, to wit: "To the County of Choteau, the said County of Cascade

shall be liable for, and shall pay, the sum of | have issued warrants upon the general fund of $30,000, fifteen years after date.' the County for this indebtedness-as much so as for any item of the current expenses of said County.

But it is insisted by the appellant that if the Act contemplated a cash payment from the proceeds of the bonds, it would have said so, and would have provided for the transfer of the proceeds from one county treasurer to the other. In reply to this we say that the Act provides that said bonds shall be issued as near as may be in conformity with the General Law, and when we turn to section 810 of the General Laws of the Territory, we find that "when the county commissioners of any county shall issue any bonds authorized by this Act, it shall be their duty to sell the same, and give notice by advertising in some newspaper published in the county, or if there be no news paper published in such county, then in any newspaper published in an adjoining county of this territory, and also in one or more newspapers published in the City of New York, for a period of not less than thirty days prior to the time said bonds are to be sold; such advertisement shall be for sealed proposals, which shall state the amount of such bonds for sale, and the party or parties offering the highest price therefor shall be entitled to receive the amount of such bonds which he or they may offer to buy, but no bonds shall be sold for any price less than the par value thereof."

So that the fact that the Legislature saw fit in the passage of this Act to put in provisions which were already provided for by existing laws is no argument in favor of the construction insisted upon by the appellant in relation to the purpose for which the coupon bonds of said County might be issued by said Commissioners.

In interpreting any clause of a section it should be construed in connection with existing laws, and should be interpreted in the light of the objects and purposes that the Legislature had in view in its enactment. Here the Legislature is about to call into existence a new county, necessarily without revenue to pay debts and meet current expenses. Time must elapse before taxes can be assessed and collected, and it was not to be suppo-ed that there would be in the treasury of the new County, at the first meeting of the Commissioners, money enough with which to pay the sums of $30,000 and $6,000, due respectively to Choteau and Meagher Counties, and also to pay its necessary current expenses. In anticipation of this obvious condition of affairs, the Legislature provided for the issuing of warThis is a provision for funding the floating rants upon the general fund, and upon their indebtedness of the counties by authorizing being presented and not paid for want of funds, them to issue bonds, sell them according to which they must have obviously seen must be the foregoing provisions, cover the money back the case, they should bear interest from the into the treasury, and pay them out upon pre-date of their indorsement by the treasurer at sentation in their order of the outstanding war- the usual rate at which warrants draw interrants. The law then amply provides for the est, that is 7 per cent; thus putting it in the manner in which the bonds shall be converted power of Cascade County to carry the debt, into cash, and the proceeds transferred from until it could provide for its liquidation by taxthe treasury of the county issuing the bonds to ation, or, at their election, place coupon bonds the creditors, be they counties or individ-upon the market at such rate of interest as they uals.

might be able to sell them at par, not to exceed It is further argued that these General Laws 6 per cent, and thus raise the money with touching the management of the affairs of the which to pay in cash the indebtedness created counties already existing were applicable to by said Act. The Act provides that these Cascade County when organized, and that there- bonds shall not be payable for seven years, and fore there was no necessity for the Legislature, shall not be due for fifteen years, thus giving in the Act organizing Cascade County, to pro- the County ample time to get its affairs upon vide for the issuance of coupon bonds and such footing as would enable it to provide for their sale for the purpose of paying its indebt- the payment of the principal without embaredness. The same remark would apply with rassment to its taxpayers. If the Commissionequal force to the provision in said Act that ers should see fit to issue warrants upon the bonds may be issued to pay the current ex- general fund and pay 7 per cent interest until penses for the first year. The right to do this the money could be raised to pay them, they was as perfect under existing laws before the might at any time thereafter, when in their passage of this Act as it was afterwards. So, judgment it was for the best interest of the likewise, in regard to the first alternative, County to do so, have issued bonds and sold that the Commissioners of the County of Cas- them under the general law to obtain money cade should cause to be issued at their first with which to liquidate said warrants. But regular session to each of said Counties a war instead of leaving the County to the General rant or warrants on the general fund of said Law as it then stood, the Legislature saw fit to County for the amounts to which they be re-insert these express provisions for its governspectively entitled as aforesaid, which said warrants, if not paid on presentation to the treasurer of said County of Cascade, shall be by him indorsed, 'not paid for want of funds,' and shall thereafter bear interest as other warrants The Legislature having declared that Cascade County owed Choteau County the sum of $30,000, without any further legislation under existing laws, upon application of Choteau County to the Commissioners of Cascade County, it would have been their duty to

ment.

2. If the Commissioners elected to issue warrants on the general fund, they had the right to the whole of the time of such meeting in which to make their election. But the failure of the Commissioners to act at this meeting ought not to defeat the rights of the respondent. Had it received its warrants it could either have had the money and the use thereof, or the interest which would have accrued. But if the Commissioners had elected the second alternative,