The Mitchell capital. (Mitchell, Dakota [S.D.]) 1879-1918, 1914-02-05
THAT NAME
OF OPPONENT MUST
GO ON THE BALLOT
Attorney General John
son on cNulty's
Eligibility.
WRONG TIME NOW
Nulty's Right to Hold
Office Must Be Tested
After Election.
WRONG TIME NOW

Pierre. $. D.-By circumstances
which may or may not nave been in
part created purposely, Attorney-Gen-
eral Royal c. johnson has been called
upon to pass upon the eligibility of
Judge Frank McNulty, his opponent
for The republican nomination for
congress in the Second district, and
yesterday submitted to the secretary
OF state an opinion requiring the sec
rotary to place the name of his OBJ
ponent on the March primary ballot.
The encouragement does not hold
that his opponent is eligible to hold
the office OF congressman. He mere
ly declares that he is eligible for the
primary ballot and asserts that any
question as to his right to hold the
office to which he aspires cannot be
raised until after his election and
then only by contest proceedings. The
attorney-general is of opinion that
the supreme court would refuse to
pass upon the question of McNulty's
right to hold the office, under the
constitutional provision prohibiting
judges of the circuit from seek
ing other offices during their terms.
In support of this, Johnson cites Il
state supreme court decision in a very
similar case.
Avoids PittaIl.
If the encouragement had ruled
the other Way, that is, that McNulty's
name should be kept off the ballot.
and the supreme court had reversed
that ruling. McNulty's friends would
have said that johnson had used his
present office in an effort to get rid
of his opponent. But Johnson has re-
fused to fall into any such trap-if
it was a trap-and now his friends
will no doubt point out his magnani-
nifty in declaring that his opponent
should have the right to make the
race.
Following is the attorney-gcneral's
opinion:
The Opinion.
ION January oath, | received from
you a copy of the application of Judge
Frank McNulty, petitioning the SUI
preme court TO issue q writ of manda-
mus to compel you to place his name
upon tIe UdllUl lOi inc COMING pTl-
mary election as a candidate for the
republican nomination to the office
of representative in congress from the
Second district, and on the same date
receives your oral request to advise
you as 10 the law and appear in the
sup?CmG court to defend your action.
in accordance with your request,
Therefore, and as the law requires
the attorney general to act as your
advisor in official matters, / have to
say hat in my opinion you have no
lawful right to refuse to place the
nam" of Judge McNulty upon the bal
lot for the primary election, and that
your position is legally ~indefensible.
'In the case of State eX. rel. Och
senreiter VS.. Blegen, as county audit
or Of Day county, &c S. ID. 1G6, 12S
n. w. 4S9, the supreme court was
petitioned 10 prohibit the county au-
ditor of Day county from printing the
name OF j. II. Hetley as the republi-
can party candidate for superintend-
ent of schools on the official ballot
to be voted in that county at the gen
eral election.
HaDey Settled Point.
THE petition alleged that j. II.
Hetley was not eligible to fill the Of
flee of county superintendent. The
petition was denied. The court, by
Mr.. Justice Hancy, said:
Independently of these pro-
visions, ~(referring to sections l
and 2, chapter 50 of the laws Of
1903, relating to county superin-
tppdpntcl the Gt1tutpc of thic
state, relating to party nomina-
tions to state and county offic-
es, are silent on the subject of
eligibility. As to all elective Of
fices except the n involved in
this proceeding County %superin-
tendent) there is no statutory
provision precluding any polite
al party from presenting an in
eligible candidate if it chooses
SO to do. I" $ " 1t is an element
airy rule universally recognized
that eligibility "a be questioned
after election only, in a direct
proceeding to which the officer
is a party 20 Cyc 1880.
"ln conclusion the court said:
OF course, nothing in this
decision should be so construed
as to preclude an investigation,
after election, of the i~ntervenor's
right to hold the office il he
should be elected
Upon the authority of this decis-
ion, 1T is; my duty to advise you that
if you have refused TO place the name
of Judge McNulty on the ballots as d
candidate for the republican nomina-
ton as representative to congress,
you should at once withdraw that re
fusal and, III obedience to the law,
place Mr.. McNulty's name upon the
ballots and thereby put an end to this
proceeding, saving the time of the
court and the expense to the state.
Section IS of Article 5 of the
South Dakota constitution is as fol-
lows:
No judge of the supreme or
circuit court shall be elected to
any other than a judicial office,
or be eligible thereto, during the
term for which he was elected
such judge. All votes for either
of them during such term for
any elective office except that of