The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1926-06-05
ARGUMENTS
PRESENTED
TOTHE COURT
(Continued from pare one.)

(COntnUe0 from page one
ing Of ballots, poll books and other
election supplies is being held up
pending the certification of the
names.
Although no one sought to mini
mize the importance of the case, the
hearing was parked by frequent dis
plays Of good humor by contcnding
attorneys and by members of the
court.
Four Judges on Bench
Only four of the supreme court
justices sat during the argument,
Justice Burke being absent from the
city. The case originally was set for
hearing Monday but was moved up at
the request Of attorneys.
In presenting the case for the
plaintiff, s. l.. Nuchols, candidate for
the Democratic nomination as at
torney general and one of the plain
tiffs, averred that the board of ad-
'ministration in receiving express
packages addressed to the secretary
of state, acted as the latter's agent
and that the petitions technically
were in Byrne's hands on May 80. 1t
was agreed that the petitions were
received by the board of administra-
JIOu IuIy 81 DuL WE'RE uOL ueIIVcTeu 10
Byrne until June L..
Nuchols contended that the primary
law specifically asks courts to apply
its terms literally and that the rules
governing the filing Of election Pc
titions had been substantially COM
piled with" ION that basis" he said
I'VE should be entitled to have our
names printed on the ballot as the
nd ln<n 81 ka a III, (.
party"
Members of the court joined in the
general laugh which followed
Nuchols also challenged the idea
that May 20 was the last day for
filing, citing a case which he con-
tended would indicate that a petition
filed on June l really was legal.
Burchard's Status Questioned
He also raised the question of what
status Burchard would have in case
the court denied the application for
a writ of mandamus. Halvor l.. Hal
vorson, Minot, filed a petition of five
voters to fill the vacancy before
Burchard did, he explained, and ask
ed If that would bar Burchard's
name from the ballot.
In his view, Nuchols said, any num-
Der of candidates could file on five
voter petition regardless of whether
or not regular petition had been
filed in the usual way.
The plaintiffs were represented at
the hearing by LANCER & Nichols and
+. @. Hellstrom.
In his argument later John Thorpe,
first assistant attorney general re-
presenting Byrnc, agreed with
Nichols on the latter point and pre-
cipitated discussion from the bench
in which Justice Birdzell and Chief
Justice Christensen expressed Op-
.p0site views. The proceedings were
more or less informal because at
torneys for each side had little OPP
portunity to prepare the case and the
court members asked frequent ques-
tions.
Disregarding the question of the
proper date for closing the filings,
Thorpe pointed out that the COM
plainants contended that custom has
created an agency for handling all
express packages received at or sent
out from the capitol, the agency be-
ing the supply department of the
board Of administration.
The Main Question
"They are attempting to force upon
US an agency by chstom," said Thornc.
"rhc question is if the secretary of
state can be held to an implied
agency or if he would be permitted
to deny that agency"
:. II wonder il the man who drew
this law is still alive" said Chief
Justice Christianson, musingly.
Other members of the court Joined
in the laugh which followed the
sally.
Questions asked. by the court dur
ing the argument were taken by
hearers as an indication that it. might.
in its decision, attempt to clarity the
entire situation, including the right
of Halvorson to bar Burchard from
the ticket if Burchard loses the case
Mt bar.
If Halvorson attempts ttoI prevent
the printing of Burchard's name on
the ballot it will mean still further
delay and still more worry for elec-
tion officials.
Ten Democrats now have filed five
voter petitions, D. NJ. Holmes, Grand
Forks, candidate for the guberna-
torial nomination. and r. f. Smith,
Michigan, candidate for the congress
sional nomination in the first district,
having filed during yesterday.