The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-05
CAWASSING BOARD
ALLOWED TOCOUNT
GOVERNOR BALLOTS
Judge Jansonius Modifies Or.
der But Still Restraints 70.
suanco Of Certificate
OLSON WOULD STAY ON JOB
Opinion Holds Present Acting
Governor Would Continue
II Action Succeeds

u NCIJOO SUCC00Q0
The state carvassing board, now In
session, Tuesday was permitted 70
canvass and certify the vote for gov
ernor In the general election under an
order signed by District Judge Fred
Jansonius, modifying his previous re-
straining order.
The modification order excludes
members Of the state canvassing board
from the restraining order and allows
them to certify the vote. but still re-
strains Secretary Of State Robert
Byrne from issuing . certificate Of
election to Thomas H. Noodle, Demo-
cratic governor-elect.
In the application for the nodifi-
cation, attorneys for Noodle asked the
court to modify the restraining order
previously issued by excluding from
the provisions Of the order the re-
straint Of members Of the state can.
wasting board from performing their
statutory duty with respect to can
wasting the returns" Of the general
election and making their findings
and their certificate to the secretary
Of state.
Grounds for Request
The request was made on the
grounds that:
The restraining order enjoins the
canvassing board from acting beyond
the time when 1t legally has the right to
act and might result in iIreparable
injury to the defendant.
The duties Of the canvassing hoard
IRE purely ministerial In character
and must be performed according 70
law regardless Of the qualifications Of
any candidate"
No issue will present itself to the
court for determination In the pro-
ceedings unless the defendant shall
have been certified to have received
the highest number Of votes cast for
governor at the election.
Meanwhile, with = staff Of six at
torneys retained by him, Governor
elect Noodle prepared for . vigorous
counter attack on the contest charges.
U. 8. District Attorney p. w. Ian.
Ter heads the defense counsel, and as.
sociate counsel are Tom Burke Of
Bismarck; NJ. A. Eildreth ond NJ. W.
Murphy Of Fargo; John Moses Of
Hazen and John Sullivan Of Nandan.
Lanier had only . brief statement
to make in respect to the case.
1T Is well known" he said, that
my policy Is to try lawsuits only IN
the courtroom. I would rather tel
you what we have done than what We
are going to do. Mr.. Noodles at
torneys are al on the Job, and there
Is not the slightest dependency IN
our ranks"
Olson Would Continue
Political adherents Of deposed Gov.
william LANCER, credited with being
prime movers In the effort to prove
Noodles disqualification, were con-
fronted Wednesday with second
hurdle to jump in case they SUCCESS
fully remove Noodle q governor
elect.
John Nystul. chairman Of the exec
utive committee Of the faction Of the
NonpArtisan League with which Gov.
Ole II. Olson Is affiliated, Wednesday
obtained an opinion from Fargo at
torney, H. q. Fuller, . to Olson's
responsibility in the event Noodle
might be disqualified.
Fuller told Nystul that Olson would
remain as governor after Jan. I, 1885,
regardless Of the fact his term expires
on that date, and indicated. that Wal
ter Wexford, lieutenant governor
elect, . LANCER faction adherent, could
not legally assume the office.
Fuller in . letter to Nystul said Ia
part:
II would say that Gov. Olsons right
to the office after Jan. !, 1885. as-
Stunning that the governor-elect = not
qualified to take office, now = quite q
definitely settled by high judicial au-
thority as the right Of Gov. Olson to
exercise the executive powers and
hold the office Of governor 1t this
time.
No Vacancy Occurs
q. the Lieutenant governor takes
over the office Of governor when
vacancy occurs in the office Of gov.
ernor and under conditions strictly
limited by the constitution to Z situa-
ton where the Official has beeh legal
ly qualified chat Is. where . person
legally qualified has been electedD and
has qualified and has taken the office.
This Is upon . principle very definite
" expressed and followed by numer-
Gus courts. that Z vacancy does ust
take place and cannot exist until
there first has been m incumbent IN
the office elected and qualified. VINO,
for some reason has ceased % hold
the office.
Accordingly, II it may be found that
Mr.. Noodle did not possess the quait.
ftcatieus required for the office Of
governor ct the time Of his election.
It viii follow that no election took
place, and 1t viii follow that no va
cancy lin the sense created BY the
provision for devolution Of powers on
the lieutenant governor) can occur In
the term commencing Jan. I, 1885.
because : duly qualified person now
Is in the office Of governor under =