The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-27
CERTIFICATE GIVEN
GOVERNOR-ELECT BY
OF COURT
Dismissal Of Injunction Clears
Away Last Obstacle Be-
fore Inauguration
SECOND TEST TO FOLLOW
Jurists Would Take Quo War
ranto jurisdiction But De.
Tense in No Hurry

Having received q certificate of
election late Wednesday, Thomas II.
Noodle. Democratic governor-elect,
will take office on January Z, 1885.
Immediately thereafter, according
to present indications, his right to
hold the office will be challenged and
he may be made the defendant in a
suit to test his qualifications to hold
the post.
Attorney General p. o. Satire late
Thursday filed application for q writ
Of quo warranto, asking determination
by declaratory Judgment but the ele-
ment of time, pressed by defense at
torneys. may forestall action until
after the Inauguration date.
The application asks q determine
ton by declaratory Judgment. It is
based on the same facts upon which
q restraining action was brought
against Secretary Of State Robert
Bryne, presenting issuance of a GER
tificate Of election to Noodle, which
has since been dissolved.
The supreme court Wednesday dis
missed an injunction action against
Noodle and Secretary Of State Robert
Byrne, designed to prevent issuance
of the certificate Of election. BY this
action It cleared away the only Inn
mediate bar to Noodles becoming
governor.
Issue Formal Opinion
The state supreme court issued its
formal opinion Thursday that the
state canvasstng board or secretary
Of state cannot be enjoined from is
suing q certificate Of election to the
Democratic governor ELECT. The court
was unanimous In its decision.
The opinion was forecast nom the
bench Wednesday. when the court
handed down its oral dscision In the
restraining action against Noodle.
The court held that the only duty
Of the canvassing board y to count
the vote and to certify tho results TO
the secretary Of state, and that the
secretary Of state, under his oath, Il
required to issue the certificate Of
election.
"A certificate Of election issued By
the secretary Of state, pursuant TO
the determination Of the state board
Of canvassers, clothes the one to
whom It is issued with the prima
facie title to the office: and, upon
qualifying, such person becomes en-
titled to possession Of the office and
to exercise the functions thereof un-
til the certificate Is set aside in some
appropriate judicial proceeding.
Upon all questions arising COLA
terally such certificate IS conclusive
" presumed to be correct and hence
It must stand until set aside by
competent tribunal in . proceeding
in which the validity is attacked.
IAN action will not lie to enjoin
the state board Of canvassers from
canvassing and ascertaining and de-
termining the results OF an election.
or to enjoin the secretary Of state
from issuing . certificate Of election
to . person whom the state board Of
canvassers duly determines to have
been elected, upon the ground that
such person does not possess the pre-
scribed legal qualifications.
At the same time the court, having
been asked to do 50 by both sides, an
nounced that it would take jurisdic-
ton Immediately in q quo warranto
action, to be brought under the terms
Of the declaratory judgment act. and
determine before January whether
Noodle has the right to serve.
There were strong indications, how
ever, that this offer by the court
might not be accepted and that any
further court action would await
Noodles assumption Of office.
Time May Bar Action
Having won their fight in the In
junction case, his attorneys told the
court they are hard pressed by other
matters and that Noodle is very busy
now preparing to take office. The
result. they said, IS that they may be
unable to 60 ahead with the case ''as
rapidly as we had expected"
They expressed themselves Is per-
fectN willing" to argue the case at
once but that they could not imme-
diately put in several days work on
the matter by reason Of prior engage
nents.
Immediate argument was mani
testify impossible, since the court had
laid down certain requirements to Be
Continued on Page Two)