Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1906-11-05
PRIMARY LAW DECISION
JUDGE Goss OF MlNoTS DISTRICT
HOLDS THAT THE INDIVIDUAL
NOMINATIONS ARE PER q,
MlTTED. :

effect that individual nominations by
petition are permitted, was rendered
yesterday by Judge E. B. Goss of this
judicial district This is the first time
in the history of the new law that
a court has rendered decision on the
question whether the primary law SUI
percedes the provisions of the old
law permitting individual nominations
and nominations by assembly, says
the Optic.
The far reaching effect of this de-
cision is appreciated when it is consid-
cred that had the decision been other
wise the whole law would have been
declared unconstitutional, for it would
have forever prohibited the formation
Of new political parties in North Da-
kota and according to the decisions OF
the supreme court of Nebraska and
other states, no legislature has this
power.
The decision was rendered in the
case of the state of North Dakota ex
rel, G. H. Moellring relator, VS.. E. M.
Atterbury, county auditor of Williams
county, respondent Moellring circu-
lated a petition for the individual
nomination of states attorney of Will
liams county in accordance with the
provisions Of the old law prior to the
passage of the primary law.
He secured the required number OF
signatures and presented the petition
to the county auditor twenty days be-
fore the election, that is on Oct. 16
last, and requested the county auditor
to place his name on the ballot. The
county auditor communicated with the
attorney general of the state, who ad-
vised him to place on the ballot only
ated at the primary election, thus ex-
Guiding all individual nominations and
nominations by assembly. The county
auditor followed the advice Of the at
torney general and ordered the ballots
struck off. =
Moellring applied to Judge Goss
for writ of mandamus, and the case
came up yesterday on an order to
show cause issued by the Judge. NOEL
ring was represented by Greenleaf,
Fisk, Andrews and Leighton and the
county auditor by LeSueur and Brad
ford of Minot, and T. S. Becker of Will
liston. After listening to the argu-
ments and after a careful examination
Of the law, Judge Goss issued a per-
emptory writ OF mandamus command
ing the county auditor to place Mr..
Moellring's name on the ballot.
| Judge Goss opinion was made on
the theory that while the new primary
law is entirely silent on. the question
of individual nominations, it was plain
ly the intention of the legislature to
pass a law that would regulate nom
nations by party" not individual
nominations or nominations by assem-
bly,.
Speaking of the decision Judge Goss
said:
Under the general election law as
it existed prior to the passage of the
primary law, there were three methods
of obtaining a nomination: First, by
individual nomination by petition;
second, by assembly. wherein the peo
pie met in mass convention and
selected nominees which were certi
fed to the county auditor; third, but
the usual system formerly used oil
selecting delegates at caucuses. which
delegates met in party convention fol-
the nomination of candidates, which
were certified to the county auditor.
i. "After a careful examination of the
entire law in the matter the court de
>. cided that it was the evident intent o1
the legislature in enacting the new
: primary law to leave in force the OLD
law as to individual nominations by
petition. The primary law in clauses
states what portions of the former
. laws are repealed and what portions
are continued in force, but is entirely
) silent as to individual nominations by
;. petition, and by the term Of said pri
, mary law, the court held that it was
: to apply expressly and solely to nomin
} ations by party and did not cover in
| dividual nominations.
T. "The eonstitutiona1ity of the pri
mary law was brought into question
as follows: The primary law makes
no provision for the growth Of new
! political parties. as by, It's expressed
: terms in it provides that a primary
! election may be held only by the poll
!. tical parties who cast 5 per cent o
4 the total vote at the last genera
a election, so that il a construction 81
q the law was given to exclude assembly
Il nominal ions, there being no provision