The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1906-11-24
GAN FISK SERVE On
THE SUPREME
Correspondent Doubts His
Right to Fill Unexpired
Term.
SOUTH DAKOTA CASES
Cited and Construed as Appli.
cable to North Dakota
Conditions.
To The Evening Times:

To The Evening Times:
The present judicial muddle in thls
state has caused lot of comment,
especially in view of the fact that the
law is not we'll settled as to the meth
cd of filling vacancies. There is no
statute or provision In this state pro-
viding for the nomination and election
of Judge to fill a vacancy. The only
provision on the subject is found In
the constitution In section SO which in
general terms provides that such va
cancy shall be filed by the governor
until the next general election when
1t shall be filled by election.
The refusal of Judge Fisk to accept
the proposition of Judge Kauf to al
low him to resign and to take up the
position at once that the work of the
court might not be delayed has caused
the matter to be Investigated with
more ordinary care.
Our sister state of South Dakota
has also been confronted with this
same question. Their constitutions.
provision is very similar to this state
and provides that vacancies in distric.
as we'll as supreme courts shall be
filled by the governor by appointment
until the next general election, but
their Legislature has failed to enact
any law to carry in to effect this pro-
vision. In deciding one Of these cases
the court said: "It would become the
duty of the legislature to provide for
such election; and until such provis-
ion is made there is no law in this
state for the election of judges"
This was the case of the State ex
rel MCGEE vs.. Gardner. In this case
reported in 81 N. w. COG, Judge Now
lin resigned on Nov 1, 1891 and the
governor appointed William Gardner
to MI such vacancy. On the next gen.
eral election, held on Nov. 8, 1892 Levi
MCGEE was candidate for such posi-
ton, and was duly elected. He quail
ned and demanded possession of the
Office which was refused by Gardner
who claimed that his appointment held
for the unexpired term of Judge Now
lin. The court after an exhaustive
examination of the law and authori-
ties held that there was no law for
filling such vacancy, and that the
term next general election" means
the next election at which it is pro-
vided by law that the officer may be
elected whose Office has become va
can't"
This matter was again passed on in
South Dakota by its supreme court in
the case of vacancy on the supreme
bench caused by the death of Judge
Bennett who died just about as he was
commencing to serve his second six
year term for which he was elected
in November, 1893. In that case in
constituting the constitutional provis-
ion the court held that the person ap-
pointed to fill such vacancy would
hold the entire six years for which
Judge Bennett was elected, notwith-
standing the constitutional provision
that the governor should appoint un-
til the next general election" See
81 N. w. 1876.
Should North Dakota follow tn.
construction placed on the law by its
sister state it would seem that Judge
Knauf's appointment would hold until
the expiration of the term for which
Judge Young was elected, the laws in
both states being practically the same,
and the legislature in this state hav-
ing failed to make any provisions for
hlling such vacancies by election just
as they likewise failed to do in South
Dakota.