The Bottineau courant. (Bottineau, Bottineau County, N.D.) 1895-1929, 1922-01-05

again become subject to attack Tor,
further insufficiency and, IL SO found
such election must be set aside and 50,
ad infinitum. The petitioners do not
now question the legality Of the cleo
ton itself 81 specify any irregularit-
les in the conduct Of such election.
They question only the sufficiency OF
the petitions. As hereinbefore stated,
it must be apparent that, pursuant to.
the recall constitutional amendment,
the electors of the state have the
right to propose and file recall petit
tons; the electors of the state also
have the right to object to the suffi-
cheney of such recall petitions either
before the secretary Of state or by re-
sort to the courts. These are apparent
and concurrent rights. Agencies for
the exercise and determination of
these rights anterior to the time of
holding a recall election, have the au-
thority to pass upon the sufficiency
of recall petitions prior to a recall
election, must be a determining and
final authority. Otherwise it follows
that the respective concurrent right
of the electors to propose, of or the
electors to object to recall petitions
may be rendered, in either event, nu-
gatory or useless by the individual,
action of either after an election, in
fact, been held. Manifestly, where no
objection has been made before the
secretary of state nor any proceedings
taken into court anterior to the hold
ing of a recall election, and where the
electors proposing recall petitions are
not given any opportunity to exer-:
else their concurrent right, it must be
presumed that the secretary of state,
in passing upon the recall petitions
has performed his duty"
Cites Other Cases
After discussing the legal proceed
ings which grew out of the removal
of a county seat from Caledonia to
Hillsboro, in which the sufficiency of
the petition was attacked, following
the election, and citing the decision
of the supreme court at that time
that the election closed the door to at
tack upon the petition, the opinion
continues:
Further, after the holding of such
election, it must be presumed that
electors objecting to such recall petit
lions have acquiesced in the presump-
ton that the secretary Of state has
performed his duty. To otherwise hold
would, in effect, simply make the ex-
pressed will of the electorate at an
election a sportive play to be resolved
thereafter into a reality by a deter
mination of validity or invalidity de-
pendent upon proceedings that might
be had concerning the sufficiency of
recall petitions. This could serve no
other purpose than to introduce into
governmental affairs hopeless con-
fusion and uncertainty in government
al operations. Assuredly. the recall
constitutional amendment contem-
plates no such construction nor may
any such construction be cleaned from
the statutory or cognate law.
1t is well recognized in this state
that canvassing boards do not possess
judicial functions. They are not con-
cerned with the validity or invalidity
of an election. Their duty simply com-
prehends the reception of the returns
and the declaration of the results
shown thereby. The state canvassing
board does not even issue the certifi-
cate of election. This is issued by the
secretary Of state. It is manifest that
the action of the state board of IAN
vassers can neither validate or inval-
idate the special election held. 1t
would be highly improper for this
court, by equitable interposition, TO
determine the validity of the election
concerned, in any event, by injunctive
process against such canvassing
board. =
For the reasons stated the applica-
ton must be denied" ,