The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1934-12-04
COUNSEL CONTENDS
| WILL OF PEOPLE IS
CONSIDERED FINAL
N. W. Murphy Of Fargo, Attor-
ney for Governor Elect,
Outlines Major Issues
SEES ACTION AS TOO LATE
Raises Question Of Whether
Celebrates Decision Can
Be Set Aside by Courts
SEES ACTION AS TOO LATE

Fargo, N. D., Dec. 4.-(R-Thoma
H. Noodle Tuesday prepared to de-
fend the attack on his right to as
sumo the governorship. His attorneys
issued statement Monday night
denying that the governor-elect lack
ed qualifications for the office.
]. G. Eaton, state Democratic chair
man, Tuesday announced that five
leading North Dakota attorneys have
been retained by the state central
committee and the governor ELECT to
defend Mr.. Noodle in the case being
brought against him in Burleigh
county district court.
They are p. w. Lanier, United
States district attorney, John Sui
Ivan Of Mandan, M. w. Murphy of
Fargo, Tom Burke Of Bismarck and
John Moses Of HAGEN.
Murphy outlined as the major issues
in the case the question of whether
the decision of the electorate can be
challenged or set aside by the courts
after the voters have expressed their
will, and whether the state constitu-
tional provision that q candidate
must have resided in the state five
years preceding his election means
a continuous period.
Those challenging Noodles right
to the office claim he voted in Min
nesota four years ago and for that
reason fails to meet the provision of
the North Dakota constitution that
candidate for governor must have
resided in the state for five wears
prior to his election.
Attorney Issues Stateeuent
Noodle, who u here comforting
with attorneys, declined 70. comment
on the situation, declaring that the
matter rested with his counsel.
Murphys statement said:
There are q number Of questions
which win probably Be raised In this
election contest and In the litigation
which may follow. The first and
most obvious u whether, after the
election Is over and the people Of tho
state have declared their choice for
governor, decision In = statewide
election can now be challenged OF
set aside by the courts.
The second is whether the consti-
tutional provision rs to five years
residence must b figured as q con-
tinuous and unbroken period OF five
years at any time prior to the election
accompanied by IN actual residence
in the state ut tho time OF The mi.
mary election and ct tho time Of the
general election In the fall qualified
Mr.. Noodle to 60 on tho ballot and
now entities him to the Office Of gov
ernor as the choice Of the people at
such general election.
THE provision in the constitution
as to residence was clearly intended
to insure that the successful candidate
tor governor should be familiar with
conditions in the state. Mr.. Noodle
would clearly meet this requirement.
He has lived IN North Dakota with
occasional absences for the past IS
years, and 1t is conceded even by his
political enemies that he has lived
here continuously for the past four
years or more. The practical inten-
ton Of the trainers of the constitution
has therefore in his case been clearly
met.
M Ds Nbt1ZCu hltCI xC0F
His citizenship and the right TO
enjoy the privileges flowing from that
citizenship cannot of course be now
questioned and is not questioned III
these proceedings. Any person who
is q citizen of the United States and
has lived in North Dakota for at least
one year is citizen Of North Dakota
and is entitled to vote and enjoy the
lull rights Of a citizen Of this state.
another question involved in this
contest is whether the constitutional
provision as to five years residence
was self-executing, or whether that
constitutional provision required at
firmative action by the legislature to
make it effective. There are many
provisions of the constitution of North
Dakota which the courts since state
hood have held to be in allegiance and
not operative until made effective by
legislative action in the form Of q
statute G. law duly adopted and put
in force.
"Still another question is whether
the constitutional provision as to
residence, assuming that it was In
tended to apply exclusively to the five
years Immediately prior to the cleo
ton, was mandatory or directory -
that is to say, whether it Of itself was
a disqualification or a requirement.
which would be waived if not csaal-
lenged before the people had gone to
the polls at q regular election and
selected Mr.. Noodle by clear ma
iority vote.
Voters Have Spoken
1T might be pointed out In this
connection that Mr.. Langer's disquali-
fication as governor rested not only
upon q constitutional provision that
one convicted Of q felony should
thereby become disqualified from citi-
zenship and the right to hold public
office, but also upon an express law
adopted by the legislature making
that provision OF the constitution di-
iectly applicable to the office Of gov
ernor. Likewise. Mr.. LANCER was the
successful candidate on the Republic
can ticket for the office Of governor
at June primaries. His qualification
as q candidate never was challenged
by his political opponents because
they had failed to make such . con-
test before the primary election was