Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1910-12-22
Supreme Court

Iva O. Jenness, Appellant, VS.. S, H
Clark, Respondent.
l.. Sec. 764 R. C. 1905, which pre-
scribes that at each general election
there shall be elected in each county
a superintendent of schools whose
term shall be for two years land until
his successor is elected and qualified"
is a constitutional and valid enact
ment.
2. Following the rule announced in
State VS. Fabrick. Is N. u. "a, Held,
that under such statute the regularly
elected incumbent of the office en-.
titled to hold the same until his sue.
cessor is legally elected and qualified
3. A person who is ineligible to
hold a public Office cannot be elected
thereto and his election is a nullity.
The word elected" as used in Sec.
764 signifies an election Of a quail
fled success or incumbent.
4. The incumbent of a public Of
flee has the right to hold over until
his successor is elected and qualified,
has such a special interest as enables
him to maintain an action under the
provisions of Chap. Is, Code Civ. Pro.
(Secs. 7349 ct seq. r. c. 1905) against
one who intrudes himself into such Of
flee, unless such right has been lost
or waived in some manner either by
the voluntary surrender Of the office
or by some other equivalent act.
(Syllabus by the c0urt.)
Appeal from District Court, Oliver
county, Crawford, j., from Judgment
in defendants favor, plaintiff appeals
Reversed.
'Hyland & Nussle, for appellant.
Reimestad & Mccormick, for re-
spondent.
Opinion of the court by Fisk, all
cOncurring.
State of North Dakota. Plaintiff and
Respondent, VS.. Joseph Winbauer, De-
PENDANT and Appellant.
l. preliminary examination be-
fore a committing magistrate, or a
waiver thereof, is necessary before
the filing of an information in the dis
trict court on the charge of ommi-
ting an offense against the criminal
laws of the state, unless such offense
is charged to have been committed
during the continuance of a term of
such court, barring the exceptional
cases enumerated in Section 9791, r.
C. 1905.
2. On the arraignment of person
charged by information only with hay
ing committed a criminal offense
when a term of the district court was
not in continuance and not included
in the exceptions referred to, the pro-
per procedure is by motion 10 set
aside the Information.
g. January -. 1910, the defenda mt
waived a preliminary examination be-
fore a magistrate on a cOmplai mt
charging him with keeping and main
timing a common nuisance in viola
ton of the prohibition law at divers
sundry times since the LIST day Of
July, 1909, in certain described prem
Uses, and was held to the district
court on such charge. May S, 1910,
an information was filed in the dis
trict court during term which COM
menced May 5, 1910, charging the
same person with keeping and main
tanning a common nuisance in the
same premises described in the COM
plant on the LIST day of July, 1909,
and from thence continually to and
including the End day of May. 1910.
Held, that the complaint and the in
formation charge two distinct Of
lenses and that the End day of May,
1910, not having been during the con-
tiuance OF a term of the district
court, the information should have
been set aside on motion made on the
ground that the defendant had neith-
er had nor waived preliminary ex-
animation as to the offense charged
in the information.
Appeal from judgment Of the dis
trict court of Morton county, Craw-
ford, J.
Defendant was convicted of the Of
Tense of keeping and maintaining a
nuisance in violation of the
lay and appeals.
Reversed. Ill
J. M. Hanley. States Attorney, An
drew Miller, Attorney General, and Al
fred Zuger, Assistant Attorney Gen.