The herald-advance. (Milbank, S.D.) 1890-1922, 1902-10-24


not SO appear that Mr.. Volkmar had
authority to act for Mr.. Priest.
The general rules of agency con-
tracts do not apply in this case, for
this is not contract, in the first in
stance, and furthermore, the statute
says that the chairman shall sign the
certificate of nomination, which he has
not done, which affirmatively appears
| from the certificate itself.
| The case of Lucas VS.. Ringsrud, ;
| S. ID. 1856, is a decision by our Sup
rene Court, which virtually settles the
law in this state with reference to the
spirit of construction, to be placed
upon the above provisions. The
court says: San original certificate
purporting to state nominations made
by a party convention, without giving
the names, addresses and business ad-
dresses of the candidates, and signed
by chairman and secretary of the con-
venton, without the addition of their
residences and business addresses,
failed to comply with the law, and
when presented was properly rejected
| by the secretary of state.
If the simple omission of the busi-
ness residence, residence and address,
was sufficient ground for the Supreme
| Court of this state refusing to COMPEL
the Secretary of State by mandamus
to file the certiic ate of nomination,
because the law required that the
certificate of nomination should
contain the same, how much more
right have we to conclude that the
| important act of making the
certificate of nomination for a
county convention, should not be del
| egated through line of sub-agency,
whose authority does not atfirmatively
appear; a certificate of nomination,
the Legislature undoubtedly intended,
was worthy of the personal attention
Of the chairman of such convention,
and if the convention was unfortunate
in selecting as chairman, a man who
could not give the matter his personal
attention, who found it more conven-
lent to delegate his authority to
another, county officers can not be
blamed for being careful, prudent
officials, anxious to see that the pro.
visions of the statute are complied |
with.
Upon investigation I find that the
certificate of nomination above re- |
ferred to has been filed with you as |
county auditor, Notwithstanding the |
irregularities hereinbefore mentioned. |
| assume, however, that you raised |
your objections to the certificate at |
the time of filing, which would not be |
a waiver of such irregularities under |
such circumstances. 1t is your duty !
to notify all candidates whose names |
appear upon the certificate of your |
decision in the m after, that they may |
take advantage.of their right to apply |
for writ of mandamus to the circuit |
court, requiring you forthwith to
place their names upon the official
ballot, and publish the same as re-
quired by law. If this is not promptly
done, they will have no remedy at
law, which the constitution guarantees
them, and your filing of the certif.
icate will be considered waiver OF
the technical objections raised.
Our statutory law is silent upon the
method Of raising objections to certif-
icates of nomination, the time for
raising them, ETC., and there is gen.
eral proposition of law that when
such certificates are in apparent con-
| formity to the law and with the statu-
ory requirements, shall be deemed to
be valid. Am. & Eng. Enc. Law,
vol. 10, page 662, but in this instance,
it is apparent from the face of the
certificate that the same was not
signed by the chairman of the con-
vention, the certificate is invalid upon
it's face. and as register OF deeds
has the right to refuse to file a deed
which is not properly acknowledged,
so has the county auditor authority
to refuse to consider a certificate Of
: nomin alton which affirmatively does
) not comply with the provisions Of the
statute.
; In New York, in the case of Fern
) bacher VS.. Roosevelt, 80 Hun AL, i
is held that citizen may raise tn
: objections to the certificate, and il
g the absence of statutory provision o.
f the subject, an official, certainly ha
right to use his discretion, seeking
a to have the plain provisions of tn
law complied with.
r See Am. & Eng. Ency, Law, supra
: page, 658, as to the authority c
Y public officers to pass upon the abov
r objections.
e The case of Jones v. State, So N.
e 229, is in point, wherein it is sal
b "Though town may refuse
b accept a certificate of nomin alto
S when it is not acknowledged by tn
l president and secretary of the cor
y vention, his acceptance thereof will
e out objection cures the defect, ''Whe
# such objections are raised after elet
! tion. 1t would therefore appear th;
the proper time to make such obje'
If tions as are above mentioned avail
n able, they shall be raised before ele
l. tion, just as you have done in tn
h matter.
l. Wherefore / conclude as N after
n law that you have a right to refuse
publish the names of the candidate
II mentioned in such defective cirtifica
r of nomination, or to place them upo
a the official ballot.
There is little question as
a the illegality Of the documel
Il attempted to be filed, and til
o auditor has conscientiously r,
r fused to place it on record VI
r til the proper measures have bee
taken to have the names place
e upon the ticket County Alto
% ney Fuller has carefully locke
y into the matter, and also recei'