The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1900-04-26
WILL D[CIDE II EARLY
DECISION ON POTTGIEsER's PLANT
PROMISED AT $50 THIS
MORNING
LAW NEED NOT BE PERFECT
Gmperfection OF Provision Does
Not Necessarily Make 1t UncOn-
stitutionaI-Chtef Justice
start Suggests.

The nearing on the application made by
j. NJ. Pottgieser to the supreme court for
q writ of prohibition restraining the
judges of the district court from ordering
any change in the official ballot as made
up by City Clerk Jensen, was held yes
terday afternoon. A decision will be
handed down at $3.50 this morning.
Chief Justice Start and a full bench
listened to the arguments made by F. G
B. Woodruff for the REALTORS, and Thomas
D. O'Brien and John H. Ives, who, while
representing the Democratic city and
county organization, also for the time be-
ing appeared for the judges of the dis
trict court
Chief Justice Start was anxious to limit
the time of the arguments, the array OF
attorneys evidently giving the court an
impression that considerable time would
be taken. Mr. Ives said he was unable
to say just how long he would want, it
depending entirely on what counsel for
the relator would say Mr. Woodruff
thought twenty minutes would be suffi-
Gent for him and it was settled that half
an hour would be allowed each side.
Thomas d. O'Brien presented a motion
that the order be dismissed, but to this
Chief Justice Start said If the order was
dismissed another application might be
made tomorrow and it would be better to
hear the arguments on the merits of the
application.
f. 6. b. Woodruff stated the case Of the
REALTORS and then commenced his argu-
ment, basing the ground for the appii-
cation and order on the unconstitutional
ity of the section OF the law under which
proceedings were commenced in the dis
trict court.
WOODRUFF'S CLAIM.
The district court, he claimed, was pro,
ceeding without authority and he quoted
sections from the fifth and fourteenth
amendments of the United States consti,
tuition and sections and 7 of article
Of the Constitution of Minnesota regard
Ing the rights of citizens. There must
be, he argued, q notice and hearing be-
fore judgment and under section 43 of the
election law there was no due process
of law. No provision for notice to inter.
ested parties nor any opportunity given
for those whose. names might be stricken
from the ballot by the judges Of the dis
trict court to be given:a hearing. This
was repugnant to the constitution of the
United States and of the state of Mime,
sofa and hence the section was void.
Chief Justice Start inquired if the claim
was made that the part of the law which
provided for the secretary of state, coun,
ty auditor and clerk to place the names
Of candidates on the official ballots was
unconstitutional. To this Mr. Woodruff
said there was no such claim made The
chief justice intimated that IL the por-
tons of the law he had alluded to We're
constitutional, then section 4S might also
be valid The fact that the section was
imperfect the chief justice said, did not
make it unconstitutional
Mr.. Woodruff pointed out that before
the present law was enacted the candi-
hates placed on the ballot had a day in
court by mandamuS, but under section
IS no provision was made for a day in
court The district court might give
houce to interested parties in such cases,
but no such notice was obligatory The
lest of the validity of a law was not
what the court might do, but what it
must do The act must provide the
means for carrying out its provisions SO
that the right of no citizen should be lost
sight OF. 49,.
Justice Collins inquired if the provis-
ions of the Australian law in other states
was the same as the section referred to-
To this Mr.. Woodruff said there was 20
such provision In the law of other states
MIR. O'BRIENs ARGUMENT.
When Thomas D. O'Brien arose for the
purpose of replying to the argument Of
the attorney for the REALTORS, the clerk
of the court handed up the petition. applt-
q i6Dtr re ,SoR, I,o.l
Bented to the district court Judges by the
attorneys for the Democratic county and
city committee
What is this?" queried Chief Justice
Start as he looked suspiciously at the
large bundle of typewriter pages.
THAT is the papers in the original case
before the district court, as sent up by
the judges" replied Mr.. O'Brien, "and ]
hardly think it will need to be gone into''
The chief justice looked relieved and re-
marked that The hoped not"
Mr.. OBrien said the showing made was
not sufficient to have the order asked for
issued. a writ of prohibition should only
Issue when an inferior court was exceed
ing it's Jurisdiction The Australian law
was passed in 1889 for the purpose Of pro-
viding regularity in elections, and the
provisions of the law had been of much
help to the various parties. The CLERKS
and other officers whose duty it was to
should be subject to the Jurisdiction Of
the courts. If the arguments advanced
by the attorney for the REALTORS was true,
there was no necessity for writ of
prohibition. The rule of the supreme
court of the state held time and time
again was that when parties had rights
by certiorari writ Of prohibition should
not be issued When the matter is to
be passed on by the lower court, and
the only question is on the enforcement
of the law, then it is simply an ordinary
case In the issuance of a writ of prohi-
bition the act must go to the power OF
the court. No question was raised in the
present case, except as to the serving OF
process. Under the act an officer is given
the right to make up the official ballot
From necessity of the case, the court
must act summarily. If the law direct
ing the city clerk to make up the ballot
was constitutional, then section 49, which
provides how an error or omission is to
be corrected, must be constitutional. The
section provided that the city clerk
should, if an error was made appear be-
fore the court and show cause why he
had not properly performed his duties If
he did not appear he was under the sec
ton in contempt. 1t was to be supposed
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