Bismarck daily tribune., 1902-10-21

the present case, to analyze or construe
the provisions of section 4S1 of the Re-
vised Codes, cited by counsel for the
defendants, and shall refrain from so
doing because, as will be hereafter
shown, this court will decline to as
sumo original jurisdiction in this case
and will leave an adjudication of the
very important questions relating to
the merits of the petition to be deter
mined in due course by proceedings to
be instituted in the district court.
which tribunal possesses undoubted
original jurisdiction in this and all
similar cases.
Reverting to the statement of facts
as set out in the petition, it becomes
necessary. in disposing of the case. to
particularly mention certain facts
which are omitted from the petition.
First, the petition embraces no charge
of FRAUD AGAINST EITHER THE
COUNTY COMMISSIONERS WHO
ADOPTED THE RESOLUTION GRE
ATING THE PRECINCTS COM
planned OF, NOR AGAINST THE
INSPECTORS OF ELECTIONS, OR
THE COUNTY AUDITOR, who are
made defendants in this proceeding.
In other words the petition omits to
allege that any actual fraud has been
committed or that any actual fraud is
threatened Or contemplated by the de-
PENDANTS. 1t is further true and we
think important that the petition omits
to allege in terms that if the defend
ants, the inspectors of elections, shall
pursuant to -he authority contained in
said resolution of the commissioners,
proceed to open the polls and hold an
election within the city of Bismarck,
that it will follow as result of such
action that any elector of the city will
be deprived of the right to vote or that
the interests of any candidate for Office
| will be imjuriously affected thereby. or
that any eector or any candidate will
be subjected to any inconvenience or
disadvantage as a result of holding
such contemplated election in said pre-
cincts. 1t follows that this court can
not, in the ABSENCE OF SPECIFIC
AVERMEN'IS TO- THAT EFFECT.
INDULGE THE PRESUMPTION
THAT THE RIGHTS OF EITHER
THE VOTERS OR CANDIDATES FOR
OFFICE IN QUESTION ARE IN ANY
JEOPARDY IN THE PREMISES un-
less such inference is necessary to be
drawn from the facts which are alleged
! in the petition. But it is substantially
alleged, and this court will assume, for
| the purposes Of disposing of the mo-
tion to quash, that the precincts at
tempted to be created by the recent ac-
tion of the county board, were created
without legal authority and are illegal
precincts, and, consequently that the
election sought to be enjoined in such
precincts will, if permitted to be held,
| be an irregular election. Conceding
this, the question is presented whether
such irregular election, if held. will be
so FAR VITTATED BY ITS LILLE
GAL1TY THAT IN THE EVENT OF
"A CONTEST THE LAWFUL VOTERS
WILL LOSE THEIR VOTES AND
THE ELECTION ITSELF BE SET
ASIDE BY A COURT OF COMPE-
TENT JURISDICTION. 1T IS OUR
OPINION THAT NO SUCH INFER
ENCE CAN BE DRAWN FROM THE
FACTS SET FORTH IN THE PETI-
! I4ON' Upon the argument counsel
for the petitioner was requested to
point to any statutory provision or de-
clded case which would warrant a.
court in annuling the election for lille
gallty, II the same should be held with
lin the disputed precincts. In response
| to this request counsel did not cite any
| authority to this court upon which any
such decision could be sustained. On
the contrary, counsel for petitioner
content themselves by declaring that
the precincts in question are illegal
and ultra wires and that, for this rea-
son alone, this court should assume
original jurisdiction and by it's prerog-
ative writ enjoin the inspectors from
holding the election contemplated and
which they were appointed to hold.
It is true that counsel in their brief
put a supp pposdtitious case under which
| they claim that electors may be dis
franlchised. They say a voter living
in ward Of the city might remove to
another residence in the same ward
and that. in such case, the voter would
be deprived Of his voting privileges
because a period Of ninety days would
not lapse between the date of the reso-
luton creating the precincts in ques-
tion and the date of the general cleo
ton. The petition is silent as to any
such state of facts but if any such
case exists in the city. it is our
opinion that the voter. would not ha