The evening times. [volume] (Grand Forks, N.D.) 1906-1914, 1907-03-18
OPINION OFSUPREME
COURT N JARVIS
CASE
Written By Justice Elliot
Points of Law That Are
Decided.

The opinion of the supreme court,
written by Justice Elliot in the Jarvis
case is as follows:
l. Section ia, chapter s, G. l..
laws 1895, which confers upon the
city council the power to canvass the
results of votes cast at all city cleo
tons and declare the results thereof
and makes the council the Judge of
the election and qualification of its
own members, was not repealed by
chapter PCS, general laws 1901, or by
section 1886, R. L. 1905. The coun-
Gil and the district court have concur
rent Jurisdiction to hear and deter
mine election contests of this charac-
ter.
2. A writ Of prohibition will issue
only when it appears that the inferior
court or tribunal to which 1t is d.
rected is proceeding in some matter
over which 1t possesses no jurisdiction
or is exceeding its legitimate powers in
a matter over which it has jurisdic-
ton. Irregularities and defects In the
proceeding will not warrant the court
in granting this remedy.
Order to show cause discharged.
This proceeding questions the juris-
diction of the city council of the city
of East Grand Forks to determine the
right Of the relator to the Office of
alderman. Since September Is, 1898,
the City of East Grand Forks has
been and now is organized under
chapter 8 general laws 1895. At the
regular city election held on Novem-
Der z, 1905, the relator, James Jarvis,
and August Borchers were candidates
for the office of alderman from the
First ward of that city. It is conceded
that both candidates were eligible to
the Office. On November 10, 1905, the
canvassing board declared that each
candidate had received 20 votes and
that the result was tie. There
after, on November 20, the tie was
determined in favor of the relator by
the casting of lots in the presence of
the city council, as provided by Sec
ton AZ, chapter 8, general laws 1895,
and thereupon the council adopted
resolution declaring the relator the
duly elected alderman from the First
ward. Under instructions from the
council the city clerk then issued and
delivered a certificate of election to the
relator who on January 2, 1906, en-
tered upon the discharge of his duties
as alderman and for some time parti-
cipated in the work of the council. He
continued to perform the duties of the
Office until February 10, 1906, when he
was ousted by judgment of the dis
trict court. This judgment was there
after adjudged void and reversed by
this court, BELL vs.. Jarvis, 107 N. w.
$40, and the relator again took his
seat as a member of the council and
is still performing the duties of the
Office. On July z, 1906, at special
meeting Of the city council, on the COM
plant of August Borchers, proceedings
were instituted by the council to hear
and determine the matter set forth in
the petition and complaint, that is, to
hear and determine an election con-
test instituted by Borchers. The re-
lator then applied to this court for
writ of prohibition directed to the
members Of the city council and the
mayor of said city, and a restraining
order issued.
If the city council has Jurisdiction
over the subject matter of the con-
troversy the writ of prohibition should
not issue. This depends upon whether
general laws 1895. chapter 8, sec
ton ia has been repealed. That
statute provides:
1.-The city council shall have power
to, and it shall, canvass the results If
votes cast at all city elections and de-
clare the results thereof, and shall
be the judge of the election and
qualifications of its own members"
Chapter 365, general laws 1901, pro-
vides that:
ANY candidate or elector of the
proper city or county may contest the
election of any person declared elected
by any canvassing board to any city,
county or state Office, provided that the
person SO deciding to contest the cleo
ton of any such officer, shall within
ten days after the decision of any
such canvassing board, file with the
clerk of the district court of the proper
county, a notice of appeal from such
canvassing board, etc."
This act was in substance carried
into the revised laws of 1905, section
1886, as follows:
ANY voter may contest the election
of any person for or against whom he
had the right to vote, who is declared
elected to state. county or municipal
Office, or the declared result upon a
constitutional amendment, or other
questions submitted to popular vote,
by proceeding as follows: He shall
file with the clerk of the district court
of the county of his residence within
ten days after the canvass is completed
a notice Of appeal to such court, speci-
flying the points upon which the con-
test will be made, etc."
Chapter 1865, laws of 1901, applied
to municipal elections. Dryer vs..
Sibley, 76 MINI. IS. The relator con-
tends that chapter 1865, general laws