The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-06

election Of Noodle vas null and void
and no one was elected governor, the
people had received no opportunity
to make their will effective and that
he would retain the office until some
one were elected and qualified. There
Is quite lot Of legal opinion for
this premise. A corollary to 1t is
that, since he Is acting governor only
during the disqualification Of william
LANCER as the result Of the latter's
conviction on = criminal charge,
LANCER would return to the office in
the event he Is ,ranted q new trial
by the federal district court Of ap-
pealS.
The possibility t.lat . new election
would be called rests upon the fact
that the courts are supposed to in
terpret the will the people as we'll
Is the constitution and to see that
they get = square deal. Il there
appeared no other way to make the
will Of the people effective and 1t
seemed that an injustice would be
done them by any decision the court
might make which would not also do
violence to the constitution, the court
might create q brand new precedent
lby suggesting to the acting governor
that q new election be called to de-
termine who should be governor, thus
throwing the matter back In the
laps Of the people.
Such . move would be unique in
the annals Of American states but
Is not impossible.
Cases similar to that here are
rare. One lawyer alleges that he has
found Nebraska case in which q
governor ELECT was ruled out because
he had not lived in the state two
years, the constitutional require
ment there, In the late 70's when the
matter was presented.
In Indiana and some other states,
cases similar to this one but not ex-
actly in point re fairly numerous and
the gist Of these Is claimed to favor
Noodles contention.
Cites Oliver County Case
Meanwhile, election contests near
er home are being searched for local
precedent and q case which may re-
ceive wide attention Is that OF Jennes
VS. Clark, appealed to the supreme
court from Oliver county in 1911. In
this case, one Iva o. Jennes, superin-
tendent Of schools, challenged the
right Of s. H. Clark to take over the
office Of county superintendent Of
schools on the ground that he did not
have q teachers certificate OF the
highest county grade and hence was
ineligible to serve even though he had
been elected.
The district court granted Clark
the office, but the supreme court re-
versed the decision, holding that
Clark could not qualify because he
did not meet the legal requirements
It ruled that the plaintiff should
continue to hold the office. It is in
teresting to note that w. L. Nuessle,
now q judge Of the supreme court,
and J.. A. Hyland, Bismarck lawyer,
were attorneys for Clark. In this
case, Of course, there was no success
sion provided, 50 1t gives no hint OF
what might be done with Welford's
claim. The significant thing about
it, however, Is the declaration that
tbs election was null and void. This
would seem to favor Olson's chances
Of holding over.
The lengths to which the court will
60 to validate an election are clearly
indicated in the last statewide con-
test presented to 1t. That case in
volved q challenge to the legality of
the recall election In 1921 which GUST
ed Lynn J. Frazier from the COVER
nor,s chair and brought In r. A.
Nestos. Two other officials also were
recalled and SUCCESSORS elected.
The significant thing about this
case 4 that all five Justices OF the
supreme court wrote separate opin.
ions, but all concurred that the cleo
ton was legal.
Appeal Held Too Late
The point raised by the plaintiffs
was that the petitions upon which
the order for the recall order was bas-
ed were defective. It was charged
that some persons had signed more
than once and that many names had
been filled In by the same hand. The
court denied the plea to declare the
election invalid on the ground that
it was too late to raise the Issue.
Justice H. A. Bronson, now prac-
! ticing law In Grand Forks. held that
ths canvassing board, against which
an Injunction was asked just Is in
the Noodle case, had no judicial func-
tons and were not concerned with
the validity or invalidity Of elections,
their sole duty being to receive the
election returns and declare the re-
suits. He pointed out that an effort
to prevent it from issuing certifi-
cate Of election would not stand,
since certificates Of election are is
sued by the secretary>of state Is the
states chief election officer.
Justice 1. E. Birdzell rejected the
plea on the ground that it was not
alleged that the election did not re-
suit in q fair expression Of the will
Of the voters.
Justice A. NJ. Christianson, who
still Is on the bench, commented: 1T
seems too clear for argument that q
court would not be justified In inter-
fering with the action Of this board.
!. No case has been cited and
none has been found where 1t (such
power) has been 50 exercised :.
All expense incident to the election
has been incurred It would
seem that the most elementary rules
Of common justice and common sense
would preclude them from asserting
at this time that the secretary OF
state had no legal right to call the
election; that his action in so doing
and the election held were and are
mere nulllties and that. In the eyes OF
the law an election has not been
held"
Refer to Trail Battle
In this case, frequent reference is
made by all the judges to fight in
volving the removal Of the Traill
county seat from Caledonia to Hills