Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1904-03-23
Holds That Filing on March Is
Is Within Time Limit
Under the Law
CASE WILL. BE APPEALED
City Solicitor Desires to Establish a
Precedent, and Will Secure a Final
Adjudication in the Supreme Court
pevine Goes ON Ticket Upon Original
Petiticn-costs Taxed to Derby,

HUI iSf VI ~. L'eiDS, SltS Clerk, " TIC
petition of DR.. w. S. Deyine, in man
dainus proceedings, and issued a writ
iginal nomina hion papers OF DIR. Dsvine,
as councilman from the Second ward,
as filed on the morning of March Is.
The city clerk held that the 18th was
not within the ten days limit of fling.
and was sustained by an opinion of
City Solicitor c. II. Van law, who
suggested a remedy without going into
court. DR.. Devine, contending that he
was within the limit, brought friendly
proceedings in mandamus, and the
cour, sustains his petition. overriding
the demurrer OF the defendant on both
counts. The case will be ,,ppea.ed to
the supreme court, in order that a pre-
cedent may be established The point
has never before been raised in the
state for final adjudication.
The good-natured contest between
the Second ward candidate and the city
clerk resolved itself TO one point, the
computation Of time, and by Judge
Burnham's decision the 18th is in
cluded. Attorneys state that the same
question was raised in Polk county. 6.
few years ago, and the court held ad.
versely to Judge Burnham, or to the,
effect that there must be ten clear days.
No appeal was taken. however. and fin.
al adjudication still remains. The potn.
is an interesting one. ard as Tong al,
1t has arisen it will be carried up fo.
the purpose of having something to
stand by should the question ever b..
raised again. MIR. Van Law wen. into
the case with the promise, of the ju
dietary committee that should the
opinion be adverse to the city clerk, an
appeal might be taken. This was also
understood between the city solicitor
and the plaintiff and his counsel, who
are equally anxious that a final deter
ninatton be secured.
The argument of the attorneys CEN
tered largely on the demurrer filed by
the city solicitor. in whieh it was
claimed that the facts stated in the
petition did not entitle the plaintiff 10
the relief demanded or any relief what
SsCi. iiC iflrl liauSG SET IOEln IUG
claim that the petition showed the
nomination papers We're filed on March
Is, and that the day fixed for election
was March IS. The papers were thus
filed at time which was less than ten
days before the day fixed by law for
holding the election. The secord
clause held that the plaintiff had a
plain, speedy and adequate remedy in
the ordinary course of law, under Sec
ton HOP, of the code. which provides
such method of procuring the placing
OF his name, upon the official ballot
whenever such paper has been held ill.,
sufficient by the officer with whom 1t
was filed.
Claim of the City Attorney.
The city attorney argued relative to
the time held that the clause mot less
than ten days before the date set for the
election intended that tea clear days
should intervene, between the date of
filing and the election date. Thence the
last date on which the candidate could
file was on March II. H. contention
was that the candidate had not shown
that he had exhausted all the means of
filing his petition and held. citing as
authority a decision In Johnson coun-
~ case, that by filing on March Is the
act was insufficient and thus created
vacancy on the ticket by the insufi'i-
cheney of that act.
Was Within Time Limit.
The principal contention of the plain
tiff's attorney was in the fact that the
petition should have been received by
IA. ..;t
the meaning of the code. He quoted a
authority, article %, Of section as, of the
code, on the computing OF time which
reads: In computing time the first
day shall be excluded an6 the last in
Guided, unless the last falls on Sunday,
in which case the time prescribed shall
be extended SO as to include the whole
of the following Monday His sole con-
tent.on on time. taking this section as a
basis, was that by fling on March IS the
candidate had legal right to have his
petition received and placed on the
ticket. 1t was held that it had not been
shown that a vacancy existed on the
ticket by the insufficiency of the act
of the alleged failure to file in time,
therefore there was no redress except
by writ of mandamus.
Judge CONSTITUTES the Law.
Judge Burnham held that the city
had not shown plainly and TO his sat
isfaction that the plaintiff had a p1sin,
speedy and adequate remedy by the
ordinary course of law. That while,
thru agreement, courtesy or otherwise,
the candidate might secure the placing
of his name on the ticket under section
1902 of the code, there had been moth
ing shown that in the future, under
similar circumstances, such an action
would be taken. Regarding the time
he held that to him the plain inten5 of
the law was to exclude the first day.
March is. and include the last day,
March IS, the day of election. This
was. he believed, a fail. construction
Of the code, and in the present case he
held that it was the duty of the officer
and the right of the candidate to have
the name placed on the Official ballot.
This decision will also affect that of
r. A. Christianson, candidate for park
and his name will also
be placed on the official ballot.
Council Discusses Situation.
In the city councils adjourned ses
sion Tuesday evening the mandamus
were discussed at length,
following a resolution of Mr.. Ingledue
directing the civ solicitor to appeal