Chapter XCV. *to provide a temporary Government for the Territory of Montana.*May 26, 1864. *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled*, That all that part of86 THIRTY-EIGHTH CONGRESS
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CHAP. XCV.— An Act *to provide a temporary Government for the Territory of Montana.*May 26, 1864. *Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled*, That all that part of86 THIRTY-EIGHTH CONGRESS. Sess. I. Ch. 95. 1864.Territory of Montana established.the territory of the United States included within the limits, to wit: Commencing at a point formed by the intersection of the twenty-seventh degree of longitude west from Washington with the forty-fifth degree of north Boundaries.latitude; thence due west on said forty-fifth degree of latitude to a point formed by its intersection with the thirty-fourth degree of longitude west from Washington; thence due south along said thirty-fourth degree of longitude to its intersection with the forty-fourth degree and thirty minutes of north latitude; thenee due west along said forty-fourth degree and thirty minutes of north latitude to a point formed by its intersection with the crest of the Rocky Mountains; thence following the crest of the Rocky Mountains northward till its intersection with the Bitter Root Mountains; thenee northward along the crest of said Bitter Root Mountains to its intersection with the thirty-ninth degree of longitude west from Washington; thence along said thirty-ninth degree of longitude northward to the boundary line of the British possessions; thence eastward along said boundary line to the twenty-seventh degree of longitude west from Washington; thence southward along said twenty-seventh degree of longitude to the place of beginning, be, and the same is hereby, created into a Territory may be divided, boundaries changed, &c.temporary government by the name of the Territory of Montana: *Provided, *That nothing in this act contained Rights of Indiana preserved.shall be construed to inhibit the government of the United States from dividing said territory or changing its boundaries in such manner and at such time as congress shall deem convenient and proper, or from attaching any portion of said territory to any other state or territory of the United States: *Provided, further, *That nothing in this act contained shall be construed to impair the rights of person or property now pertaining to the Indians in said territory SO long as such rights shall remain unextinguished by treaty between the United States and such Indians, or to include any territory which, by treaty with any Indian tribes, is not, without the consent of said tribe, to be included within the territorial limits or jurisdiction of any state or territory; but all such territory shall be excepted out of the boundaries, and constitute no part of the Territory of Montana, until said tribe shall signify their assent to the President of the United States to be included within said territory, or to affect the authority of the government of the United States to make any regulations respecting such Indians, their lands, property, or other rights, by treaty, law, or otherwise, which it would have been competent for the government to make if this act had never passed.
Sec. 2. *And be it further enacted,* Executive.Governor, term of office, power, &c.;That the executive power and authority in and over said Territory of Montana shall be vested in a governor, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States. The governor shall reside within said territory, and shall be commander-in-chief of the militia to be superintendent of Indian affairs.and superintendent of Indian affairs thereof.
He may grant pardons and respites for offences against the laws of said territory, and reprieve for offences against the laws of the United States until the decision of the President of the United States can be made known thereon; he shall commission all officers who shall be appointed to office under the laws of the said territory, and shall take care that the laws be faithfully executed. Sec. 3. *And be it further enacted,* Secretary, residence, powers, and duties.That there shall be a secretary of said territory, who shall reside therein and hold his office for four years, unless sooner removed by the President of the United States; he shall record and preserve all laws and proceedings of the legislative assembly hereinafter constituted, and all the acts and proceedings of the governor in his executive department; he shall transmit one copy of the laws and journals of the legislative assembly within thirty days after the end of each session, and one copy of the executive proceedings and official correspondence semi-annually, on the first days of January and July in each 87year, to the President of the United States, and two copies of the laws toSecretary, when to act as governor. the president of the senate and to the speaker of the house of representatives, for the use of congress.
And in case of the death, removal, resignation, or absence of the governor from the territory, the secretary shall be, and he is hereby, authorized and required to execute and perform all the powers and duties of the governor during such vacancy or absence, or until another governor shall be duly appointed and qualified to fill such vacancy. Sec. 4. *And be it further enacted,* That the legislativeLegislative power.Assembly. power and authority of said territory shall be vested in the governor and a legislative assembly.
The legislative assembly shall consist of a council and house of representatives. The council shall consist of sevenCouncil, number and qualification of members, and term, &c.House of representatives, number, term, &c. members, having the qualifications of voters, as hereinafter prescribed, whose term of service shall continue two years. The house of representatives shall, at its first session, consist of thirteen members, possessing the same qualifications as prescribed for the members of the council, and whose term of service shall continue one year.
The number of representatives may be increased by the legislative assembly, from time to lime, to twenty-six, in proportion to the increase of qualified voters; and the council, in like manner, toApportionment. thirteen. An apportionment shall be made, as nearly equal as practicable, among the several counties or districts for the election of the council and representatives, giving to each section of the, territory representation in the ratio of its qualified voters as nearly as may be.
And the members of the council and of the house of representatives shall reside in, and be inhabitants of, the district or county or counties for which they may be electedResidence of members. respectively. Previous to the first election the governor shall cause a census or enumeration of theFirst census. inhabitants and qualified voters of the several counties and districts of the territory to be taken by such persons and in such mode as the governor shall designate and appoint, and the person so appointed shall receive a reasonable compensation therefor.
And the first election shall be held atFirst election. such time and places, and be conducted in such manner, both as to the persons who shall superintend such election and the returns thereof, as the governor shall appoint and direct; and he shall at the same time declare the number of members of the council and house of representatives to which each of the counties or districts shall be entitled under this act. The persons having the highest number of legal votes in each ofPlurality of votes to elect. said council districts, respectively, for members of the council, shall be declared by the governor to be duly elected to the council; and the persons having the highest number of legal votes for the house of representatives in each of said representative districts, respectively, shall be declared by the governor to be duly elected members of said house: *Provided,* That in case two or more personsNew election, when ordered. voted for shall have an equal number of votes, and in case a vacancy shall otherwise occur in either branch of the legislative assembly, the governor shall order a new election.
And the persons thus elected to the legislative assembly shall meet at such place and on such day asFirst meeting of legislative assembly.Subsequent meetings. the governor shall appoint; but thereafter the time, place, and manner of holding and conducting all elections by the people, and the apportioning the representation in the several counties or districts to the council and house of representatives, according to the number of qualified voters, shall be prescribed by law, as well as the day of the commencement of the regular sessions of the legislativeLength of sessions. assembly: *Provided,* That no session in any one year shall exceed the term of forty days, except the first session, which may continue sixty days.
Sec. 5. *And be it further enacted,* Voters at first election. That all citizens of the United States, and those who have declared their intentions to become such, and who are otherwise described and qualified under the fifth section1863, ch. 117 § 5.Vol. xii. p. 810. of the act of congress providing for a temporary government for the territory of Idaho, approved March third, eighteen hundred and sixty-three, shall 88Voters at subsequent election.be entitled to vote at said first election, and shall be eligible to any office within the said territory; but the qualifications of voters, and of holding office, at all subsequent elections, shall be such as shall be prescribed by the legislative assembly.
Sec. 6. *And be it further enacted,* Extent and limits of legislative power.That the legislative power of the territory shall extend to all rightful subjects of legislation consistent with the constitution of the United States and the provisions of this act; but no law shall be passed interfering with the primary disposal of the soil; no tax shall be imposed upon the property of the United States, nor shall the lands or other property of non-residents be taxed higher than the lands or other property of residents.
Every bill which shall have passed the council and house of representatives of the said territory shall, before it Veto power.becomes a law, be presented to the governor of the territory. If he approve, he shall sign it; but if not, he shall return it, with his objections, to the house in which it originated, who shall enter the objections at large upon their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that house shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two thirds of that house, it shall become a law.
But in all such cases the votes of both houses shall be determined by yeas and nays, to be entered on the journal of each house, respectively. If any bill shall not be returned by the governor within three days (Sunday excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he bail signed it, unless the assembly, by adjournment, prevent Slavery not permitted.1862, ch. 111.Vol. xii. p. 432.its return; in which case it shall not be a law: *Provided,* That whereas slavery is prohibited in said territory by act of congress of June nineteenth, eighteen hundred and sixty-two, nothing herein contained shall be construed to authorize or permit its existence therein.
Sec. 7. *And be it further enacted,* Township, district, and county officers.That all township, district, and county officers, not herein otherwise provided for, shall be appointed or elected, as the case may be, in such manner as shall be provided by the governor and legislative assembly of the Territory of Montana. The governor shall nominate, and, by and with the advice and consent of the legislative council, appoint all officers not herein otherwise provided for; and in the first instance the governor alone may appoint all said officers, who shall hold their offices until the end of the first session of the legislative assembly, and shall lay off the necessary districts for members of the council and house of representatives, and all other officers.
Sec. 8. *And be it further enacted,* Members of assembly not to hold certain offices.That no member of the legislative assembly shall hold or be appointed to any office which shall have been created, or the salary or emoluments of which shall have been increased while he was a member, during the term for Who not to be members of assembly or office-holders in the territory.which he was elected, and for one year after the expiration of such term; but this restriction shall not be applicable to members of the first legislative assembly.
And no person holding a commission or appointment under the United States, except postmasters, shall be a member of the legislative assembly, or shall hold any office under the government of said territory. Sec. 9. *And be it further enacted,* Judicial power.Supreme court.That the judicial power of said territory shall be vested in a supreme court, district courts, probate courts, and in justices of the peace. The supreme court shall consist of a chief-justice and two associate justices, any two of whom shall constitute a quorum, and who shall hold a term at the seat of government of said territory annually; and they shall hold their offices during the period of four years, and until their successors shall be District courts.appointed and qualified.
The said territory shall be divided into three judicial districts, and a district court shall be held in each of said districts by one of the justices of the supreme court at such times and places as may be prescribed by law; and the said judges shall, after their appointments, respectively, reside in 89the districts which shall beJurisdiction. assigned them. The jurisdiction of the several courts herein provided for, both appellate and original, and that of the probate courts and of justices of the peace, shall be limited by law:Probate courts, and justice of the peace. *Provided,* That justices of the peace shad not have jurisdiction of any matter in controversy when the title of land may be in dispute, or where the debt or sum claimed shall exceed one hundred dollars; and the said supreme and district courts, respectively, shall possess chanceryChancery powers.Clerks of district court.Writs of error, exceptions, &c. as well as common-law jurisdiction.
Each district court, or the judge thereof, shall appoint its clerk, who shall also be the register in chancery, and shall keep his office at the place where the court may be held. Wilts of error, bills of exceptions, and appeals, shall be allowed in all cases from the final decisions of said district courts to the supreme court, under such regulations as may be prescribed by law. The supreme court, orClerks of supreme court. the justices thereof, shall appoint its own clerk; and every clerk shall hold his office at the pleasure of the court for which he shall have been appointed.
Writs of errorWrits of error, &c, to supreme court of the United States. and appeals from the final decisions of said supreme court shall be allowed, and may be taken to the supreme court of the United States, in the same manner and under the same regulations as from the circuit courts of the United States, where the value of the property, or the amount in controversy, to be ascertained by the oath or affirmation of either party, or other competent witnesses, shall exceed one thousand dollars, except that a writ of error or appeal shall be allowed to the supreme court of this United States from the decision of the said supreme court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writs of habeas corpus involving the question of personal freedom.
AndHabeas corpus.Jurisdiction. each of the said district courts shall have and exercise the same jurisdiction, in all cases arising under the constitution and laws of the United States, as is vested in Lite circuit and district courts of the United States; and the first six days of every term of said courts, or so much thereof as shall be necessary, shall be appropriated to the trial of causes arising under the said constitution and laws; and writs of error and appeal in all such cases shall be made to the supreme court of said territory theFees of clerks. same as in other cases.
The said clerks shall receive, in all such cases, the same fees which the clerks of the district courts of Washington Territory now receive for similar services. Sec. 10. *And be it further enacted,* That there shall beAttorney; appointed an attorney for said territory, who shall continue in office four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States, and who shall receive the same fees and salary as the attorney of thefees and salary.Marshal;
United States for the present Territory of Washington. There shall also be a marshal for the territory appointed, who shall hold his office for four years, and until his successor shall be appointed and qualified, unless sooner removed by the President of the United States, and who shall execute all processes issuing from the said courts when exercising their jurisdiction as circuit and district courts of the United States. He shall perform the duties, be subject to the same regulations and penalties, and be entitled to the same feesfees and salary. as the marshal of the district court of the United States for the present Territory of Washington, and shall, in addition, be paid two hundred dollars annually as a compensation for extra services.
There shall also be appointed by the President of the United States, by and with the advice andSurveyor-general. consent of the Senate, a surveyor-general for said territory, who shall locate his office at such place as the Secretary of the Interior shall from time to time direct, and whose duties, powers, obligations, responsibilities,compensation and allowances. compensation, and allowances for clerk-hire, office-rent, fuel, and incidental expenses, shall be the same as those of the surveyor-general of New Mexico, under the direction of the Secretary of the Interior, and such Instructions as he may from time to time deem it advisable to give. 90 Sec. 11. *And be it further enacted,* Certain officers to be appointed by the President.That the governor, secretary, chief justice, and associate justices, attorney, and marshal shall be appointed by the President of the United States, by and Oath of governor and secretary;with the advice and consent of the Senate.
The governor and secretary to be appointed as aforesaid shall, before they act as such, respectively, take an oath or affirmation before the district judge, or some justice of the peace in the limits of said territory, duly authorized to administer oaths and affirmations by the laws now in force therein, or before the chief justice or some associate justice of the supreme court of the United States, to support the constitution of the United States, and faithfully to discharge the duties of their respective offices; which said oaths, when so taken, shall be certified by the person by whom the same shall have been taken; and such certificates shall be received and of judges and civil officers.recorded by the said secretary among the executive proceedings; and the chief justice and associate justices, and all civil officers in said territory, before they act as such, shall take a like oath or affirmation before the said governor or secretary, or some judge or justice of the peace of the territory who may be duly commissioned and qualified, or before the chief justice or some associate justice of the supreme court of the United States, which said oath or affirmation shall be certified and transmitted by the person taking the same to the secretary, to be by him recorded as aforesaid; and afterwards the like oath or affirmation shall be taken, certified, and recorded Oath of judges in Idaho.in such manner and form as may be prescribed by law.
And any person who has heretofore been appointed chief justice or associate justice of the Territory of Idaho, who has not yet taken the oath of office, as prescribed by the act organizing said territory, may take said oath or affirmation before the chief justice or some associate justice of the supreme Salaries.court of the United States. The governor shall receive an annual salary of two thousand five hundred dollars; the chief justice and associate justices shall receive an annual salary of two thousand five hundred dollars; the secretary shall receive an annual salary of two thousand dollars.
The said salaries shall be paid quarter-yearly from the dates of the respective appointments at the treasury of the United States; but no payment stall be made until said officers shall have entered upon the duties of their respective Pay of members of legislative assembly.appointments. The members of the legislative assembly shall be entitled to receive four dollars each per day during their attendance at the sessions thereof, and four dollars each for every twenty miles’ travel in going to and returning from said sessions, estimated according to the nearest usually travelled route; and an additional allowance of four dollars per day shall be paid to the Chief clerk and other officers of each house of the assembly.presiding officer of each house for each day he shall so preside.
And a chief clerk, one assistant clerk, one engrossing and one enrolling clerk, a sergeant-at-arms, and doorkeeper may be chosen for each house; and the chief clerk shall receive four dollars per day, and the said other officers three dollars per day during Assembly to have but one session, unless, &c.the session of the legislative assembly; but no other officers shall be paid by the United States: *Provided,* That there shall be but one session of the legislative assembly annually, unless, on an extraordinary occasion, the governor shall think proper to call the legislative assembly together.
There shall be appropriated annually the usual sum, to be expended by the governor, to defray the contingent expenses of the territory, Annual appropriations to be made.including the salary of the clerk of the executive department. And there shall also be appropriated annually a sufficient sum, to be expended by the secretary of the territory, and upon an estimate to be made by the Secretary of the Treasury of the United States, to defray the expenses of the legislative assembly, the printing of the laws, and other Disbursements of moneys.incidental expenses.
And the governor and secretary of the territory shall, in the disbursement of all moneys intrusted to them, be governed solely by the instructions of the Secretary of the Treasury of the United States, and shall semi-annually account to the said secretary for the manner in which 91the aforesaidExpenditures by the legislative assembly. moneys shall have been expended; and no expenditure shall be made by said legislative assembly for objects not specially authorized by the acts of congress making the appropriations, nor beyond the sums thus appropriated for such objects.
Sec. 12. *And be it further enacted,* First session of assembly.That the legislative assembly of the Territory of Montana shall hold its first session at such time and place in said territory as the governor thereof shall appoint and direct; and at said first session, or as soon thereafter as they shall deem expedient, the governor and legislative assembly shall proceed to locate and establish the seat of government for said territory at such place as they may deem eligible:Seat of government. *Provided,* That the seat of government fixed by the governor and legislative assembly shall not be at any time changed except by an act of the said assembly duly passed, and which shall be approved, after due notice, at the first general election thereafter, by a majority of the legal votes cast on that question.
Sec. 13. *And be it further enacted,* Delegate in congress.That a delegate to the house of representatives of the United States, to serve for the term of two years, who shall be a citizen of the United States, may be elected by the voters qualified to elect members of the legislative assembly, who shall be entitled to the same rights and privileges as are exercised and enjoyed by the delegates from the several other territories of the United States to the said house of representatives; but the delegate first elected shall hold his seat only during the term of the congress to which he shall be elected.
The first election shall be held at such time and places, and be conducted in such manner, as the governor shall appoint and direct; and at all subsequent elections the time and places, and manner of holding the elections, shall bePlurality of votes to elect. prescribed by law. The person having the greatest number of legal voles shall be declared by the governor to be duly elected, and a certificate thereof shall be givenConstitution and laws of the United States to be in force. accordingly.
That the constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within the said Territory of Montana as elsewhere within the United States. Sec. 14. *And be it further enacted,* School lands.That when the lands in the said territory shall be surveyed under the direction of the government of the United States, preparatory to bringing the same into market, sections numbered sixteen and thirty-six in each township in said territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in said territory and in the states and territories hereafter to be erected out of the same.
Sec. 15. *And be it further enacted,* Judicial districts.That, until otherwise provided by law, the governor of said territory may define the judicial districts of said territory, and assign the judges who maybe appointed for said territory to the several districts, and also appoint the times and places for holding courts in the several counties or subdivisions in each of said judicial districts, by proclamation to be issued by him; but the legislative assembly, at their first or any subsequent session, may organize, alter, or modify such judicial districts, and assign the judges, and alter the times and places of holding the courts, as to them shall seem proper and convenient.
Sec. 16. *And be it further enacted,* Disbursing officers to give security.That all officers to be appointed by the President of the United States, by and with the advice and consent of the Senate, for the Territory of Montana, who, by virtue of the provisions of any law now existing, or which may he enacted by congress, are required to give security for moneys that may be intrusted with them for disbursement, shall give such security at such time and in such manner as the Secretary of the Treasury may prescribe.
Sec. 17. *And be it further enacted,* Treaties with Indians to be observed.That all treaties, laws, and other engagements made by the government of the United States with the Indian tribes inhabiting the territory embraced within the provisions of this act, shall be faithfully and rigidly observed, anything contained in this 92 THIRTY-EIGHTH CONGRESS. Sess. I. Ch. 95, 96, 97. 1864.Agencies and superintendencies to be continued.act to the contrary notwithstanding; and that the existing agencies and superintendencies of said Indians be continued, with the same powers and duties which are now prescribed by law, except that the President of the United States may, at his discretion, change the location of the office of said agencies or superintendents.
Sec. 18. *And be it further enacted,* Portion of Territory of Idaho made part of Dakota.That, until congress shall otherwise direct, all that part of the Territory of Idaho included within the following boundaries, to wit: Commencing at a point formed by the intersection of the thirty-third degree of longitude west from Washington with the forty-first degree of north latitude; thence along said thirty-third degree of longitude to the crest of the Rocky Mountains; thence northward along the said crest of the Rocky Mountains to its intersection with the forty-fourth degree and thirty minutes of north latitude; thence eastward along said forty-fourth degree thirty minutes north latitude to the thirty-fourth degree of longitude west from Washington; thence northward along said thirty-fourth degree of longitude to its intersection with the forty-fifth degree north latitude; thence eastward along said forty-fifth degree of north latitude to its intersection with the twenty-seventh degree of longitude west from Washington; thence south along said twenty-seventh degree of longitude west from Washington to the forty-first degree north latitude; thence west along said forty-first degree of latitude to the place of beginning, shall be, and is hereby, incorporated: temporarily into and made part of the Territory of Dakota.
Approved, May 26, 1864.