The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-12
APPEAL EXPECTED
TO FOLLOW ACTION
IN BURLE|CH Court
Judge Jansonius Declares Him.
self Without Jurisdiction
in Challenge
vACATES TEMPORARY ORDER
Quo Warranto' Proceedings to
Try Title Of Office Ex-
pected by Plaintiff
vACATEs TEMPORARY ORDER


Tuesday night won the first round of
the court battle in which his right to
take office was challenged.
| In decision handed down at D.
m, after listening to arguments from
3 to $50. District Judge Fred Jan
sonius held that he was without juris-
dictton in the case and vacated the
temporary injunction which had re-
strained Secretary of State Robert
Byrne from issuing a certificate of
election. A stay Of two days was
granted to permit Attorney General
p. Q. Sabre, plaintiff in the case. to
prepare an appeal to the supreme
court if he wishes to do 50.
Whether or rot an appeal is taken
from Jansonius' ruling in the injunc-
ton case, it seemed probable that a
further effort would be made to pre-
vent Noodle from exercising the pow
ers and duties of governor. II it
comes this probably will take the
form Of quo warranto" proceedings
In which the title to the office can be =
tried.
This, however. probably will not
come to final determination until AZ
ter Noodle is inaugurated and indi-
cations are that he will assume office
on January as contemplated by the
constitution.
Defense Indicated
Meanwhile, statements to the court
Tuesday indicated what the defense
will be in the event the matter is laid
before the supreme court for final de-
termination.
!, It was stated that Noodle does not
admit that he has been q citizen of
any state other than North Dakota
for the last 10 years and that he will
resist any attempt to show him to be
citizen Of Minnesota In 1880, al
though he admits having voted in
that state as alleged in the complaint
againt him.
The defense will be based, it was
indicated, on established interpreta-
tons Of what constitutes citizenship.
His attorneys will attempt to prove
that he regarded himself as Z citizen
lof North Dakota continuously for
more than 10 years, that he was re-
siding in Minnesota only temporarily.
and that he always expected to re-
turn to North Dakota as his perma-
nent home.
Numerous affidavits were intro
duced to support this contention, all
Of the persons making them asserting
that Noodle had frequently told them
he was a citizen Of North Dakota and
intended to return there as soon as
he could locate and purchase coun-
try newspaper.
It was further indicated that the
Noodle defense would be that he was
continuously resident Of North Da-
kota under the meaning Of the statute
defining legal residence. This asserts
that to change residence there must
be q union Of act and intent. The in
tent of Noodle ~ change his residence
is clearly denied In the affidavits pre-
sented Tuesday, hence there is no adj
mission on Noodles part that he ever
lost his citizenship.
| Cite Poor Relief Cases
This contention is bolstered, In the
opinion Of Noodles attorneys by q
long line OF decisions pertaining to
residences and citizenship. A good
many Of these are In connection with
p0or-relief cases.. where one county
has attempted to send to another
county for maintenance, people OIL
their poor lists. In several such cases
the supreme court has held, in effect,
that even though an individual had
voted In one township or county. his
legal residence might be In another
and that the act Of voting did not
make him citizen.
Any quo warranto" (by what war
rant) action which may be brought
against Noodle may be filed in either
the district or the supreme court but
it Is expected that the supreme court
will be asked to take original jurdis-
diction in the event that the plaintiffs
determine to go further with their at
tempt to keep Noodle out Of office.
This was the case in the move to GUST
Governor William LANCER after his
conviction in federal court on q fell
ony charge. That action was Of the
identical type which may be brought
against Noodle and which Noodles
attorneys Tuesday admitted could be
brought.
Try TO Beat Demurrer
Francis Murphy, special assistant
attorney general, attempted to defea.
the demurrer to the injunction COM
plant Tuesday despite long line OF
legal decisions In similar cases pre-
sented by Noodles lawyers.
He cited few or no decisions from
other courts but contended that the
current action was different from
other cases cited because all Of them
involved contests between tndividneA
for an office. whereas this case mere
II involved the right to an office.
His argument was rather involved
and his opponents accused him Of beg
ging the main question. which was
that he was trying to try the title to
/ an Office in an injunction proceeding.
whereas the only way to do that was
/ by = direct action with the person
whose title was challenged as defend
ant. Such a suit could be brought, 1t
was admitted, by the attorney general
(Coutinuel on Page q