recovered by a civil action in the name of the county commissioners, in the district court. SES 28. 28. After the tenth day after the close of any election, or sooner if the returns be received, the clerk of the board of 1679 county commissioners, taking to assistance justice of the peace of the county, or any county officer another other the shall proceed to open the returns and make abstracts of the votes. Such abstracts of votes for delegate to Congress shall be on one sheet; the abstracts of votes for members of the Legislative Assembly shall be on sheet, and the abstracts of votes for Territorial and district officers shall be one sheet and the abstract of votes for county and township officers shall be on another sheet; and it shall be the duty of clerk of the board of county commissioners immediately to make a certificate of election to each the persons having the highest number of votes for members of the legislative assembly, county and township officers respectively, and to deliver such certificate to the person entitled to it unes making application to the clerk at his office: Provided, That when a tie shall exist between two or more persons for the Council or House of Representatives, the clerk of the board of commissioners shall give notice to the sheriff of the county, who shall immediately advertise another election, giving at least ten days notice; and it shall be the duty of the clerk of the board of commissioners of such county, on receipt of the returns of any general or special election, to make out his certificate, stating therein the compensation to which the judges and clerks of the election shall be entitled for their services, and lay the same before the county commissioners at their next session, and the board of commissioners shall order the compensation aforid to be paid out of the county treasury. SEC. 29. The clerk of the board of county commissioners, immediately after making out the abstract of votes given in his county, shall make a copy of each of said abstracts, and transmit it by mail, express or special messenger, to the secretary of the Territory at the seat of government, and it shall be the duty of the secretary of the Territory, with a marshal of the Territory or his deputy, in the presence of the governor, to proceed within thirty days after the election, and sooner if the returns be received, to canvass the votes given for delegate to Congress, and the governor shall grant a certificate of election to the person having the highest number of votes, and shall also issue a proclamation declaring the election of such person. In case there shall be no choice by reason of two or more persons having an equal and highest number of votes, then the governor shall by proclamation order a new election. SEC. 30. If the returns of the election of any county in this Territory shall not be received at the office of the secretary of the Territory within thirty days after the election, the said secretary shall forthwith send a messenger to the clerk of the county commissioners, whose duty it shall be to furnish the said messenger with a copy of such returns, and the said messenger shall be paid out of the county treasury of the said county, the sum of thirty cents for each mile he shall necessarily travel in going to and returning from said county. SEC. 31. Any person who shall receive a certificate of his election, shall be at liberty to resign such office, though he may not have entered upon his duties or taken the requisite oath of office, and when any vacancy shall happen in the office of member of council or house of representatives by death, resignation or otherwise, and a session of the legislature is to take place before the next annual election, the governor shall issue a writ of election. directed to the sheriff of the county or district in which such vacancy shall happen, commanding him to notify the several judges in his county or district to hold a special election to fill such vacancy or vacancies at a time appointed by the governor. SEC. 32. Where two or more counties are united in a council or representative district, or for the election of any officer, the clerk of the board of the county commissioners of the county or counties last established shall, on the twentieth day after the election unless a previous time is agreed upon, attend at the office of the clerk of the board of the senior county, and together they shall canvass the votes according to law, and the certificate of election shall be signed by such clerk and be delivered to the proper person at the office of the clerk of the senior county, and, for the purpose of this act, the the county first created shall be deemed the senior county, and when all the counties were created by the same act, the first named therein shall be deemed the senior county. SEC. 33. There shall be allowed out of the county treasury of each county to the several judges and clerks of the election, five dollars per diem, and to the person carrying the poll books from the place of election to the clerk's office, and to the clerks of the board of county commissioners for attending at another county to canvass votes the sum of thirty cents per mile for going and returning, to be paid out of the county treasury. SEC. 34. If any judge or clerk of election, or any other person in any manner concerned in conducting the election, shall corruptly violate any of the provisions of this act, he shall pay to the county a sum not less than fifty or more than one thousand dollars, and be imprisoned in the county jail until such fine is paid, the same to be recovered by civil action in the name of the county commissioners of the proper county, for the use of the common schools of said county. SEC. 35. The term of office of all officers elected shall begin on the first Monday in November next ensuing, unless some other express provision is made by law. SEC. 36. In all elections, the person having the highest number of votes for any office shall be deemed to have been elected. SEC. 37. In counting the votes, the judges of election shall disregard misspelling or abbreviation of the names of candidates for the offices, if it can be ascertained, from such votes, for whom they were intended. SEC 38. All contests of county and township officers shall be tried in the proper county, and when an elector shall wish to contest such election, he shall file with the clerk of the board of county commissioners, within ten days after such person shall have been declared elected, a statement in writing, specifying the grounds of contest, verified by affidavit, and such clerk shall issue to the contestant a notice to appear, at time and place specified in the notice, before the probate court, which notice, with a copy of such statement, shall be delivered to the sheriff, who shall, within five days, serve the same on the contestor by delivering to him a copy of such notice and statement, or by leaving such copy at his usual place of residence. SEC. 39. The probate court, at the time specified in the notice, (and it shall appear by the sheriff's return that notice has been duly served on the contestor,) shall proceed to try such contest. Each party shall be entitled to subpoenas, and subpoenas duces tecum, as in ordinary cases at law, and the probate court shall hear and determine in such manner as shall carry into effect the expressed will of a majority of the legal voters as indicated by their votes for such office, not regarding technicalities, or error in spelling the name of any candidate for such office, and the clerk of said board shall issue a certificate to the person declared to be elected by said board, which shall be conclusive evidence of the right of said person to hold such office. SEC. 40. This act shall not be construed so as to impair in any way the right of any person to contest any election in the manner authorized and provided by statute. SEC. 41. Resignations shall be made as follows: First, By the ame Territorial officers and by all officers elected to the legislature, to the governor. Second, By all county officers, to the county commissioners of their respective counties Third, By all other officers holding office by appointment, to the body or officer that appointed them. SEC. 42. Every office shall become vacant on the happening of any of the following events, before the expiration of the term of such office: First, The death of the incumbent. Second, His resignation. Third, His removal. Fourth, Ceasing to be an inhabitant of the Territory, county or township for which he shal have been elected or appointed, or within which the duties of his office are to be discharged. Fifth, His conviction of any infamous crime, or of any offence involving the violation of his official oath. Sixth, His refusal or neglect to take the oath of office, or to render his official bond, or deposit such oath or bond within the time prescribed by law. Seventh, The decision of a competent tribunal, declaring void his election or appointment. SEC. 43. The governor shall also declare vacant the office of every official required by law to execute an official bond, when a judgment shall be obtained against such officer for a breach of the condition of such bond. -post 584 SEC. 44. When a vacancy shall occur during a recess of the $ legislature, in any office which the legislature is authorized to fill by election, or which the governor, subject to confirmation of legislative council, is authorized to fill, the governor, unless it be otherwise specially provided, may appoint some suitable person to perform the duties of such office. SEC. 45. When at any time there shall be in any of the county s7 or township offices, no officer, duly authorized to execute the duties thereof, some suitable person may be appointed by the county commissioners to perform the duties of such officer: Provided, That there is no board of county commissioners, the governor may, on notice of such vacancy, create or fill such board. SEC. 46. Every person so appointed in pursuance of the last two preceding sections shall, before proceeding to execute the duties assigned them, qualify in the same manner as required by law of the officers in whose place they shall be appointed, and they shall continue to exercise and perform the duties of the office to which they shall be appointed, until such vacancy shall be regularly supplied as provided by law. SEC. 47. This act shall be in force, and take effect from and after its passage. [Approved January 17, 1865.] 89 mombit n \ condo.c 67,89 82095129 AN ACT for the protection of Roads. Amend 67, 82 cutt ditites amors. 76.57 7982 one ty fine ܚܘ Be it enacted by the Legislative Assembly of the Territory of Montana: SEC. 1. That if any person, mining, ditch or milling company, shall, by virtue of any charter or law granted or made for mining, milling, irrigating or other purposes, dam the waters of any stream. in this Territory, so that the water thus dammed shall overflow any wagon or other road, situated on the margin or banks of said stream, or so as to cause the said road to become undermined, weakened or damaged, the said person, company or corporation shall rebuild or repair said road at their own expense; the said road to be accepted by the county commissioners of the county in which said road is located. SEC. 2. Any person, company or corporation violating the first section of this act, shall be liable to a fine, not exceeding hundred dollars, nor less than on dollars, to be recovered by action of debt, in any court having competent jurisdiction in this Territory. SEC. 3. That fines accruing by the provisions of this act, shall |