The Mitchell capital. (Mitchell, Dakota [S.D.]) 1879-1918, 1912-09-26
NO RELIEF OPEN
AS TO ELECTORS
SAYS THE COURT
To Remove Them
Wouldn't Aid Taft
PEOPLE NOT SUING
Action Brought By an Indi-
Vidual Who Doesn't Plead
Cause of Voters
NOT SUING

Pierre, S. Din the application of
John Gray VS. Olsen and other elect
ors ON the state ticket. the finding of
the majority OF the court was:
We are clearly OF the opinion that
the relief sought in this action by
virtue OF the allegations contained
in plaintiffs petition is not of such
public nature as TO give the whole
people of the state a public interest
therein, and is not maintainable in
the name of the people of the state. :"
and on this holding the demurrer to
the complaint was sustained Judges
Corson and Haney dissent from the
majority OF the court on its finding,
their position being that the suit is
one which might be properly brought
IN the manner in which it came be-
fore the court, and that it is an issue
IN which the whole people of the
state are concerned. The court has
not handed down written opinion
in the case OF Null VS.. Policy in
which the question of election of
Judges this year was the point at
issue, but merely announced that the
demurrer was sustained A written
opinion Will follow at a later date.
The order prayed for, requiring the
placing OF the name of Robert Stew
art as candidate for the supreme
court from the First district in the
democratic column. is denied
Holding that the granting of an
Injunction to restrain the state audi
tor from certifying the names of the
electors for appearance on the bal
lot for the November election would
be futile the majority opinion says
The only effect of Tie injunction,
if granted. would be TO prevent the
names of these electors appearing in
the republican column in the repub-
lican ticket on the official ballots. and
would accomplish nothing further
than to leave vacancy in the repub-
lican ticket on the official ballot as to
republican nominees for presidential
electors, and would in no manner
protect or operate TO enforce or Sc
sure to plaintiff, or any other repub-
lican SO situated, the right or oppor-
tunity to vote for President Taft by
means of the regular republican tick
ct on the official ballots. 1t seems to
be generally held that the applicant
for an injunction has the burden OF
showing that he would in some man
ner be injured or deprived of some
lawful right without the aid Of such
Injunction. and that by the granting
of such injunction he would obtain
the desired relief.
''It is another general rule or prin-
ciple OF law that courts should never
be required to perform idle or use
less acts. The granting of the injunc-
tion as prayed for by plaintiff, under
the circumstances of this case, and in
view of the present situation exist
ing in this state, with reference to the
nominations for republican presiden-
tial electors, of which this court Will
take judicial notice, would be an
empty and idle act insofar as it
would affect the right or opportunity
of plaintiff, or any other republican
so situated to vote for President Tatt
by means of the regular republican
ticket on the official ballots.
con this ground we are, therefore,
of the opinion that the showing made
by plaintiff is not sufficient to en-
power the court to grant the prayer
for injunction.
richards Bill Not Law.
"Another contention of plaintifi Is
that chapter POI, session laws oi
1911. commonly known as the Rich
ards primary law, is now in full
force and effect as a law of this state
We are of the opinion that this con
tention is not tenable. We are of the
opinion that this statute was never
passed as or for the purpose of be
coming "a law, but only for the pur
pose of being submitted to vote o
the people under the initiative ant
referendum, as conclusively appear:
from the title Of the act itself. 1t II
contended that because this act con
tains an emergency clause 1t was no
therefore submittable to a vote o
the people under the referendum.
this act had. in the first instance
been passed as law intended to tax
effect Immediately upon its passag
and approval, and a referendum pc
tition thereon seeking to submit sal
law to a vote of the people had bee
duly filed. then this contention o
plaintiff would have been applica
Bile. but not having been so passed tn
emergency clause thereof is nothln
more than Intellectual surplusage.
Some of our associates canten
that the injunction prayed for by tn
plaintiff should be granted on tn
ground that this is an ex rel actlo
maintainable by the attorney gener;
cf the state on behalf of the peopl
of the state, and that it is the peopl
of the state who are injured by til
names of the defendants, nomine'
for presidential electors, appearin
on the official ballots in the republ
can column, and that on account
the allegations contained in plaintlii
petition that the attorney general n;
refused to institute this action