Evening times-Republican. [volume] (Marshalltown, Iowa) 1890-1923, 1904-03-21
Opinion of the City Solicitor on
Nomination Middle Is
Given Today
NAY FILE SECOND PETITIONS
Holds That Candidates Should Have
Filed Papers on the 18th, to Have
Them Sufficient and Operative, But
to Fill Vacancy Because Of INSULT
cheney Others May Be Filed

In the ENHANCEMENT resulting from
| the action of City Clerk Derby in ques :
petitions of DIR. W. S. Devine as coun-
Gilman from the Second ward. and II.
| A. Christianson, park commissioner a
| remedy is suggested today by City
Solicitor C. II. Van Law, in his opinion.
fled with the city clerk at noon Mr..
Van Law holds that while the petitions
should have been filed on the 18th. in
order TO become sufficient and oper-
ative, subsequent petitions may be
filed, under section 1l02, to fin the va
eancies created by the insufficieney of
the original petitions 1t will be nee
esssry. under this ruling, for the can
didates who are affected 10 circulate
second petitions, stating that they are
filed to fill vacancy caused by the in
sufficiency of the first. and Clerk Derby
has been directed to accept them and
place the names <on the official bal
lot.
Mr.. Van Law cites a supreme court
case of Reese, ct al. vs.. Hogan, from
johnson county. which has bearing
on the local case. The. auditor of John
son county refused TO accept the NOM
ination petitions OF candidate, be-
cause he held the time had expired. A
subsequent petition was filed. under
section HOP. and this the auditor re-
fused to accept Proceedings in man
damus were commenced and the court
held that the auditor must accept the
second petition. The supreme court, to
which final appeal was taken, upheld
the decision of the lower court.
The city solicitor suggests this rem
edy as more expedient than mandaInus
proceedings, but whether the candi-
dates affected will be of the same opin-
ion or not remains to be seen. They
are not particularly anxious to go to
the trouble OF securing names to other
petitions, and yet, should the advice
of their attorneys be to that effect,
they will do so. Otherwise mandatnus
proceedings viii be commenced in the
district court this evening. upon the
arrival of Judge Burlhai.
Mr.. Van Laws opinion. as filed with
the Clerk. is as follows:
L. Derby city clerk. city-Dear sir:
Complying With your recent request,
With reference to the sufficiehcy al
nomination papers filed with you on
March Is, 1904. would submit the fol-
lowing:
"Sectdon 1104 of the code provides
that nomination papers OF candidates
> = shah be filed for the offices
in cities and towns with the clerks
thereof not more than forty nor less
than ten days before the day fixed by
law for the holding of the election. This
time liml. has been held mandatory by
every court that has ever passed up
on similar statute. SO far as l have
been able to ascertain.
III this direction of the statute Is
manda tory a strict compliance with It's
requirements Is, of course, necessary
TO make a valid nomination.
THE determine ticm of the sufficiency
Of nomination papers filed on the 18th
day of March for the coming city cleo
ton, to be held on the 2Stf day of
March, resolves Itself into determine
alton OF the method OF computing time,
under the provisions ,,f the statute first
above quoted.
..The provision that nomination pa.
pers for offices in cities shall be filed
not more than forty days before the
day fixed by law for holding the cleo
ton is evidently equivalent to a pro-
vision that such nomination papers can
be filed at any time within forty days
before the day fixed by law FOR the
election. Without taking into consid-
Grafton the other restriction fixed by
this section of the code, there IS tho
evident intent to assure forty clear
days before the day fixed for holding
the election within which to file nomi-
nation papers. hence for municIpai
election to be held on March %, in the
year 1904 the first day upon which
papers might have been
filed would be Feb. II.
Turning now to the other restric-
ton or limitation upon the time for NJ
ing nomination papers, which is linz
tied by the statute to not less than ten
days before the day fixed for holding
the election, this is evidently equiva-
lent to provision that such papers
can not be filed at any time within ten
days before the day fixed. Under this
provision, l think. no nomination pa
pers could be filed within the ten days
before the day fixed for the election.
Giving to this language the same force
as that applied to The first limit, it IS
evident that there must necessarily In :
tervene ten clear days between the last
day for filing nomination papers and
the day of election, hence March II
would be the last day under the stat
ute upon which nomination papers
might be filed. Therefore. nomination.
papers filed on March Is, having been
fled within the period of ten days pre-,
pious to the day fixed for the election, /
would be. under the provisions of this
statute, insufficient and imperative
1T has been suggested that proceed /
ngs in mandamus be instituted for the |
purpose of testing the sufficiency of |
papers filed on March 49, |
Upon second thought it occurs to me
hat a much less expensive method may
De followed, and a method which will I
secure to the electors the right to vo,s
or candidates for whom they may
ave preference, the sufficiency of /
ahose nomination papers are now in
rolved.
Section 1902 of the code provides, |
among other things that where nomi-
,ation papers are held insufficient or