The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1935-02-04

d Successor
Inc law and did no wrong: but ms re-
moving to Minneapolis and estan!sn.
ling q voting residence there depr!veo
!of his legal residence IN NORM Ia
lkota during the time he was IN MN.
lnespolis and 1t necessarily follows tnas
|he was not . resident Of North "a.
|kota for the five years next preceding
the election In November, 1884, % re-
CURED by Section 70 Of the const'tu"
ton.
Succession Also Question
This proceeding was instituted ny
the Attorney General. The State IT,
self Is plaintiff. Its purpose IS not
merely to try the title Of Mr.. MOO
die to the office Of Governor but also
TO determine tho question OF success
sion in case Mr.. Noodle Is held IN
eligible. Accordingly the Attorney
General Joined Mr.. Wexford as party
respondent and set forth IN the M
formation that 'in the event that the
tsaid respondent Thomas H. Noodle
| be held to be disqualified and tnelig-
IDLE to hold such office for the term
commencing on the first Monday IN
January. 1885, the powers and duties
therefore will devolve upon the res
pondent Walter Wexford and 1t Will
thereby and then become his duty to
exercise the powers and duties OF the
office Of Governor OF North Dakota
;" And the Attorney Generals
information concluded with the prayer
that the court declare, state and
fix the rights, status, and legal re-
lations of the said respondent WAL
ter Wexford to the office Of Governor
and for such other and further rellef
as the court may deem just and proper
in the premises"
Consider Welford's Status
It therefore becomes necessary to
consider the status Of Walter Wei
ford and his legal relation to tho
office Of Governor. The Constitu-
ton Of the State says,
Sec. II. The executive power
shall be vested In . governor, who
shall reside at the seat Of govern
ment and shall hold his office for
the term Of two years and until his
successor Is elected and duly quail
fled.
"sec. u. A lieutenant governor
shall be elected at the same time ana
for the same term as the governor.
In case Of the death. impeachment.
resignation. failure to qualify, abb
sence from the state, removal from
office, or the disability Of the gov
ornor, the powers and duties Of the
office for the residue Of the term,
or until he shall be acquitted or the
disability be removed, shall devolve
upon the lieutenant governor"
Under Section II the governor holds
office until This successor Is elected
and duly qualified" Under Section
u In event Of the failure to qualify
on the part Of the governor, the pow
ers and duties of the office devolve
upon the lieutenant governor. Since
Thomas H. Noodle did not possess the
qualifications required Of governor
Ut the time Of the general election,
he was under legal disability. It 10
undisputed that Walter Wexford was
legally elected and has qualified as
lieutenant governor. Under Section
676. Compiled Laws. 1918, all State
officers are required to qualify on
or before tho first Monday of jan
uary next succeeding their election,
or within 10 days thereafter. When
tho time arrived for the state off,
GERS elected at the general election
Of 1894 to qualify, Ole H. Olson was
the acting governor. The governor
had been disqualified Estate ex rel.
Olson ' LANCER. 256 N. w. 377,
N. D. and the disability re-
sulting In such disqualification still
exists.
Definition Of Successor
Tho word successor Is used in Sec
ton II means someone who Is en-.
trusted with the powers and Is obli-
gated to perform the duties Of his
The lieutenant gov
ernor Is not appointed to I'LL . va
cancy. No act Is required on the part
Of any official or governmental body
to confer upon him the powers and
duties Of governor In event Of the
Impeachment, resignation, failure to
qualify, absence from the state, re.
moval from office, or the disability
Of the governor" His authority u
derived directly from the constitution.
From the above quoted language 1t
will be noted that q number Of SPECIE
fic instances are set out followed BY
the general term "or the disability Of
tho governor" In State ex rel. Olson
v LANCER. ~. D.. 256 N.
w. SIT, this court. In discussing the
meaning Of this last phrase, said,
THE word disability has q
reasonably definite meaning. It
means: State Of being disabled:
deprivation or want Of ability; abb
senoe Of competent physical. In.
tellectual Or moral power. means.
fitness or the like: an instance
Of such want or deprivation It
connotes want Of legal qualifica-
ton to do . thing: legal inca
pacity, incompetency, or disquali-
fication; also, IN instance or cause
Of such tncapacity.' Webster's
New international Dictionary. We
must presume, OF course. that the
words used by the trainers Of the
constitution were used In their
ordinarily accepted sense, unless
the contrary clearly appears. In
deed, unless given the ordinary
aud accepted meaning, disability
would have no place In this con-
stitutional provision"
The lack Of residential qualifica.
lions on the part Of the governor Is q
legal disability. The constitution
does not difterentiate between ! dis
ability existing before election and
ono occurring after election In re-
gard to the right Of tho Lieutenant
governor to assume the powers and
duties Of the office Of governor. The
provision In the constitution devolv-
Ing these powers and duties upon him
must b construed In tho light Of
reason. The context must b. consid.