Emmons County record. [volume] (Williamsport, D.T. [i.e. N.D.]) 1884-current, 1894-01-19

The following copy of letter from the
Attorney General, in reply to letter
written to him by Auditor Armstrong,
bears out the statement of the Record
that the snap.judgment election of Has
per as commissioner, by Armstrong and
Rowerdink, was entirely without war.
rant of law.
BISMARCK, N. D.. Jan. 16, 1994.--H.
A. Armstrong. AuditorsEm County,
Williamsport, N. D.-Dear Sir: 1t is Sec
trolls what you should have done in ap-
pointing commissioner to fill vacancy
on Jan. 2.
The officers specified by this section
met and made the appointment on that
day, with this exception and qualification.
There was one commissioner within the
county, and probably near at hand. who
did not meet to take part in the appoint.
ment.
The man who did not meet to take part
in the appointment was a member of the
board specified in this section 1898, to-
| wit: the board of commissioners, and the
word "shall'' has to be read to apply to
the facts as they then existed, as there
word "member" has to be stricken out of
this section in determining what should
be done. whereby the section would read:
''It shall he the duty of the remaining
| two members of said board, with the
judge of the probate court and county
clerk (now county auditory, to immedi>
/ ately appoint some suitable person to
| fill such vacancy from the district where
the vacancy occurs"
| Inasmuch as this was not done, the lat
| ter clause of this section would have be-
come operative in case this had been
done, and there had been tie vote. Then
you should have called in the county
| treasurer.
When your board meets again in regu.
| lar session with the hold-over commits
sioner and the elected commissioner, |
suggest they then call in the auditor and
county judge and go through the formula
of a new appointment; and, if that clcc-
ton results in a tie vote, that you then
notify the county treasurer and call him ir:
In the meantime what you have al
ready done will stand as the acts of de-
facto board. But this action which l
suggest? will cut off the chance of an
"ouster" proceeding being brought to un-
seat the appointed Commissioner
| The commissioner who went out of Of
fee would have remained commissioner
until the elected man qualified and it
was all right for him to come in and be
allowed his day y's attendance and mileage.
| Attorney General of North Dakota.
1t should he remembered that the above
letter is based on Auditor Armstrong 8
statement Of the case to the attorney gen.
eral. OF course, if the auditor informed
him that Commissioner Margach did not
qualify before ex Commissioner Camp
bell called himself to order Gin regular
session" that would certainly justly the
attorney generals opinion as to the ex-
commissioners right to call the meeting
to order and draw pay therefor, because,
as stated in the Records former article,
and as quoted by the attorney general,
the law allows an official to hold over un.
til his successor Qualities. But Mr.. Mar.
gach qualified long before ex. Commits.
sioner Campbell! reached town on the day
of the meeting, and from the hour of his
so doing was the sole and only commits.
sioner from the Second district. This
very point was raised by Mr.. Armstrong
himself at the time Mr.. McLain succeeded
Mr.. Gayton. as the Record is prepared to
prove by several witnesses.
The Record does not expect 10 see any
change made in the situation as regards
the commissionership of the Third dis
trict, even if the course pointed out by the
Attorney General should be followed. l,
is hardly to be expected that Rowerdinh
and Armstrong will change, even II an
other vote should be taken. Mr., Haspe,