The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-06
SEE FOUR POSSIBLE RULINGS
m CovERNoRSHlP CASE
NOODLE TO WIN FIRST ROUND

MUUUE ~ WIN
At least four different decisions are
clearly possible II and when the
effort to prevent Thomas H. Noodle
from becoming governor Is presented
to the state supreme court, according
to Z survey Of local lawyers, many Of
whom have been digging in the law
books since the matter first was
made public. They ere impelled by
curiosity, ell frankly admit-and some
curious legal conclusions have been
the result.
The four possible decisions, pre-.
scented in the order Of their apparent
probability, are:
/. That Noodle will be installed
as governor.
2. That Noodle will be ruled in
eligible and Walter Wexford. lieuten-
ant governor-elect, viii take over the
duties OF the office.
3. That the election will be de-
clared null and void and that Ole
Olson viii continue as acting gov
ernor.
4. That the election will be de-
clared null and void and new elec-
ton called to name q governor.
Before examining the line Of
reasoning behind each Of these con-
illusions It Is interesting to note Ger
tain points Of agreement in each legal
discussion.
The first Of these Is that Noodle
apparently did vote at an election in
Minneapolis in 1880. He has not de-
MED It and Is l.ot expected to do 50.
The second Is that the constitu-
ton Of the state does require resi-
'dence in it for five years before elec-
ton to the office Of governor. As to
the exact meaning o. this constitu-
tional clause there is disagreement.
tho question being whether any five
years will do or whether 1t must be
the five years Immediately preceding
the election. The weight Of opinion
Is that 1t must be the five years i'm
imediately preceding the election,
which presumably would rule Noodle
out were 1t not for certain other fac
tors. It Is these. apparently, upon
which the defense will rest It's case.
Favors Win Of People
First and most important among
these is that the supreme court
doubtless will approach the case with
. view to making the will Of the
people, as expressed in Noodles elec-
ton. constitutional II 1t can possibly
do so.
The background for this presump-
ton Is found In the established rule
that it must find legislation enacted
by the people or their representatives,
constitutional II ther Is any way to
do 1t. On this basis, the legal
approach to the case will be In
Noodles favor.
A second consideration Is that Of
the time in which the matter was
advanced. Noodle was elected after
previously having gone through q
primary Is the result Of which his
name was presented to the people Of
the state by its officials In charge
Of elections Is tn. OF one eligible
to receive the office. There may be
q real question as to whether the
advancement o. an alleged ineligi-
bility now may not be construed as
defeating certain otter sections Of
the constitution and whether It may
not be too late o urge the matter
after the people have spoken.
A third consideration may not
legally affect The case and yet may
have an important bearing. This is
the question Of lean hands. The
usually conservative Associated Press
asserts that the alleged defect In
Noodles right to assume the COVER
norship was known to those who
seek to bar him from office several
months before the issue was made
public. II this is true, that silence
may be constr ed Is = fraud upon
the people Of the state by those who
had such knowledge and failed to
make 1t known. Tho rule in Ill equity
cases Is that he who seeks equity must
Go equity: In other words. that indi-
viduals may not come into court for
relief II their own Lands are dirty.
II. g seems to be the case, the plain
lifts In this action permitted the
people Of North Dakota to deceive
themselves by voting for Noodle with
out calling attention to facts known
to them, 1t may be considered 4
fraud upon the people and the
courts have consistently refused. In
interpreting statutory law, to assist
in the Preparation Of fraud. Whether
or not such an attitude would pre-
vail in dealing with . constitutional
question remains to be seen.
Peoples Rights Paramount
Not the least OF the considerations,
also, will be the matter Of whose
rights are involved. The court may,
and probably will, take the position
that the rights Of al claimants to
the office Of governor are relatively
unimportant. They obtain those
rights. whatever they may Be, only
with the consent Of the people.
Hence, the major right IN the case
is that Of the people to have In the
office Of governor the man they
want In that office, regardless
Of whom he may be. It IS settled
principle that the rights and In
terests Of the people as whole are
paramount: to those Of any indi-
Ndual.
In deciding election cases, the
North Dakota supreme court has not
been averse to resorting to "the rule
OF reason and common justice" Any
such position IN this case will make It
clear that it would hardly be Just
to rule out the choice Of the people
and put in his place man who
was not elected to the office.
The second possibility pertains to
whether Wexford would be governor
in the event Noodle IS ruled out and
hence is closely joined with the third
possibility, which IS that Olson would
continue In offs, on the groun,.. that
no one qualified {. hold the post had
been elected.
Welford's claim to the job would be