I concur fully in the decision that the objections of the respondent to the petition of the relator be overruled, *287and in all matters contained in tbe opinion, except the portion thereof relating to the question, whether or not, in the passage of an act providing for the removal of the seat of government of the Territory by the legislative assembly, it is necessary, to the validity of such act, that it be approved by the governor. The objections of the respondent do not raise this point, and there is nothing in the petition to bring the question before the court.
The averment of the petition is, that this act providing for the removal of the seat of government was duly passed by the legislative assembly. There is no averment, and no intimation of any kind anywhere, that this act was not approved by the governor, but the presumption is that it was so approved by the use of the averment that it duly passed the assembly. The respondent can deny this and raise an issue thereon, or the petition could have raised the question by proper averments, and until such issue be made by an answer, or the question is presented in the petition itself upon demurrer or motion by the respondent, its discussion, it seems to me, is a mere speculation, and is not, by any rule or reason, legitimately before the court. 1
No objection, then, being made to the passage of the act, or to its validity as a law, the great question is, whether or not the legal voters at the election approved thereof. And this question upon an answer raising a proper issue can be tried in this proceeding. The abstract of the canvassers is prima, facie evidence of the vote, but the court can go behind this, and ascertain what the exact vote in fact was.
Virginia City cannot retain, nor Helena acquire the capital by virtue of a canvass, but its location must depend upon the légal vote of the people under the act of the legislature providing for its removal.