Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1908-10-03
SUPREME. court

800 AAA4-AAlAAA OWNAAA
!. IS. sa'@ Continued from page il APP
the party did not intend to make a
nomination. - X. :.s. !,
Ib): 70 restrain the action Of v1ot.
ers at primary elections within the
parties ttit TO- which they belong. r. "
fe) 10 define and ak the mum
Der Of votes necessary to. constitute
an expression OF the party and to
determine what is the act of a party
as q party. s,.- - II, - e. !. !.
The 80 percent requirement relates
to officers Of which there is only one
of a kind and while, In the opinion
of the court, some other method
might have been provided which
was more simple and possibly more
reasonable, to accomplish, the pur.
poses hereinbefore referred to, this
matter neat is not as a regulation so ;un-
reasonable as to. render said provis-
ion or requirement invalid and it lis
accordingly, held: That when only
one Office of the same name is to
be filled at an election and candi-
dates for nomination for such office
at the preceding primary election.
failed, to receive 80 percent, Of the
party vote designated, no party nom.
ination is made for such Office, :.
Arguments as to the expediency
and reasons why the provisions
made may not be the most expedi-
ent, are properly addressed to the
legislature and will not Justify this
court, for the. reason that the most
expedient method has not been pro-
vided, in holding the provision, of
the law in question invalid. ~:
(Syllabus by the court :
Appeal from the district court of
Grand Forks county; Hon. Charles
F. Templeton, Judge. i
From an order sustaining, de.
murrer to an alternative, writ Of
mandamus, plaintiff appeals. 81, .
Affirmed.
JEFF M. Myers, for appellant.
J. B. Wineman, for respondent. !
The Courts Opinion. II
Spalding, J. This section is hereon
an appeal from an order OF the dis
trict court of Grand Forks county,
sustaining demurrer to the; altern-
ative writ of mandamus Heretofore
issued by that court, commanding
the respondent to recognize and
treat the relator as the duly nonni-
mated Democratic candidate for the
office Of the clerk of the district
court Of Grand Forks county to be
voted for at the next general en-
suing general election, orto show
cause. etc.
The only question raised Is the
constitutionality Of section IL of
chapter 100. laws Of 1907, said chap
ter being the primary election law,
and section u reading as follows. .
II the total vote cast for any
party candidate or candidates for any
Office for which nominations are
herein, provided shall equal less
than 80 percent,iof the total number
of votes cast for secretary Of state
Of the political party he orythey rep
resented at the last general election.
no nomination shall, be made in. that
party for such office, but If 80 per-
cent or more Of such vote is cast
and there is more than one candi-
date for any such Office, the person
receiving the highest Number of
votes shall be declared the nominee
of such party for such Office; pro-
vided, further. that where there is
more than one person to be elected
to the same Office the persons to the
highest numbers to be elected re-
sceiving the highest number Of votes
cast for such Office shall be declared
the nominees of the party for such
Offices" ss n
It is first contended that the 80
percent limitation Is not intended to
apply to candidates for offices to be
filled by an electorate or CONSTITUENT
cy comprising less than the entire
voting population Of the state. That
is, that it does not apply to the
nomination Of candidates for county
and district Offices.
Provision Not Clear.
The meaning of this section Is not
expressed as clearly as it might have
been, but 1t is apparent to us that,
considering the purpose of the act,
the subjects covered by. it, the con-
text of the well known fact which
must have been in the minds of the
legislators that in no county Of the
state could there be any possibility,