The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-12
C. o N TIN U E ID
from page one
Judge JansOnius
Announces Ruling
At 8 p. NJ. Tuesday

Of the legal battle to q close. Judge
Jansonious then adjourned hearing
until 8 p. M, at which time he an
nounced his decision.
Defense Asks Dismissal
Defense attorneys. headed by M
A. Murphy Of Fargo, asked dismis-
sal Of the action, claimed the court
possessed no jurisdiction in the case,
and asserted the plaintiff counsel
possessed three other methods Of lob
tanning adequate relief" without re-
sorting to injunctional proceedings.
Francis Murphy. in whose name
the action against Noodle was
brought, maintained Noodle to be
unqualified to act as governor: as
serted the election was null and
void; commended the purpose Of the
action was directed mot against
Noodle" but against the secretary Of
state to prevent him from perform
ing an illegal act" the issuance of q
certificate Of election to Noodle"
He said the action was to protect
the sovereignty Of the state"
where the secretary of state at
tempts to issue an improper certi-
ficate Of election, any citizen has the
right to step in. It does not mean
that this court has not the power to
restrain an official from issuing an
illegal and improper certificate"
Murphy argued the action was not
directed against Noodle personally
and that he was incidental to the
action, but the court questioned
where issues are joined in the case
would the court have jurisdiction?"
Murphy maintained the court would
possess Jurisdiction, claiming asser-
tions by defense counsel could not
change the type Of action"
Action Said Improper
Defense counsel maintained the &C
ton was improper, declaring any at
tack against Noodle should come
through quo warranto proceedings "a
method used against deposed Gov.
William LANCER. six months ago.
M. w. Murphy told the court the
purpose Of the action speaks for It.
SELF" He termed 1t fatty an attack
against Noodle, questioning his right
to assume office.
He insisted the court was without
jurisdiction to decide. and that SUI
preme court rulings supported the
claim that injunction proceedings
questioning the right Of an elected
candidate to assume office were ir-
regular.
Noodle already has been elected"
he pointed out. There Is q certi-
ficate by the state canvassing board
proclaiming that fact" A certified
copy Of the canvassing boards report
had been filed early in the case by de-
tense counsel.
Defense attorneys argued "there is
not dissenting voice in the Ameri-
can courts with the opinion it is gen.
orally held that election officials shall
not be restrained from counting the
votes"
Three courses open to plaintiff at.
torneys, Murphy argued, were: quo
warranto proceedings in supreme
court, questioning Noodles right to
act as governor: contest proceedings,
challenging qualifications Of Noodle !;
and review Of the qualifications un-
der the uniform declaratory act.
Claims Not Admitted
@. J. Murphy, defense attorney to
argue. told the court this Is going
to be trial on the issues of fact,
whether We will 1t or not He main
tanned that the court, to take juris-
dictton, must assume the claims
made by plaintiff counsel are admit
ted. well, they aren't admitted and
they won't be admitted"
Francis Murphy In his closing argu-
ments. objected to the filing Of the
certificate Of election results by the
canvassing board, although he made
no request for punitive action.
He argued Noodle possessed mo
title-no indicia Of office-no prima
facie evidence Of title" Purpose OF
the action, he explained was to "pre-
vent Noodle from obtaining the in
dicia OF office by virtue Of an impro-
per certificate Of election"
quo warTanto proceedings "are
available to Noodle II there's some.
body else sitting In there then" Muir.
ply said, speaking Of Jan. Of next
year.