Kee v. Redlin

• Decision Date: 19 December 1972
• Docket Number: No. 8851,8851
• Citation: 203 N.W.2d 423
• Parties: C. G. KEE, Plaintiff and Respondent, v. Earl H. REDLIN, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 423

203 N.W.2d 423

C. G. KEE, Plaintiff and Respondent, v. Earl H. REDLIN, Defendant and Appellant.

Civ. No. 8851.

Supreme Court of North Dakota.

Dec. 19, 1972.

Rehearing Denied Jan. 26, 1973.

Syllabus by the Court

1. Sections 16--15--01.1 and 16--15--03, N.D.C.C., do not apply to primary election contests. In re Murray, 145 N.W.2d 899 (N.D.1966) is reversed to the extent that it applies Section 16--15--01.1, N.D.C.C., to a primary election contest.

2. A contest of a primary election is a special statutory proceeding provided for by Sections 16--04--30 to 16--04--33, N.D.C.C., and is specifically excepted from compliance with the North Dakota Rules of Civil Procedure by Table A of Rule 81, N.D.R.Civ.P.

3. The filing of a notice of primary election contest with attached affidavit of charges by a losing candidate, coupled with proof of service thereof upon the winning candidate, for nomination to the same office, with the district court, vests jurisdiction in the district court of the person and of the subject mater.

4. Sections 16--04--30 to 16--04--33, N.D.C.C., create a special statutory proceeding for contesting primary elections, which is meant to be summary in nature, and were enacted to secure a speedy trial. These statutes create both the right and the remedy.

5. The scope of review on appeal of the findings of a trial court is limited under Rule 52(a), N.D.R.Civ.P., to a determination of whether the findings are clearly erroneous, giving due regard to the opportunity of the trial court to judge the credibility of the witnesses. Therefore we give great weight to the findings made and the inferences drawn by the trial court from the evidence adduced at the trial. Applying this rule we cannot say that the findings of the trial court are clearly erroneous.

Kenneth M. Moran, Jamestown, for plaintiff and respondent.

Pearce, Anderson, Schmidt, Pearce, Thames & Pearce, Bismarck, for defendant and appellant.

TEIGEN, Judge.

The defendant, Earl H. Redlin (hereinafter contestee), has appealed from a judgment in an election contest whereby the contestee was deprived of his nomination at the 1972 primary election for the office of North Dakota State Senator from Dickey and Sargent Counties, North Dakota.

The plaintiff, C. G. Kee (hereinafter contestant), who was defeated for nomination as a candidate for the office of State Senator from Dickey and Sargent Counties, instituted this suit by the service upon the contestee of a summons and complaint, a notice of election contest, and an affidavit in support of his notice of election contest. Seven days later the contestant obtained from the district court an order to show cause directing the contestee to show cause why he should not be deprived of his nomination. The order to show cause was brought on for hearing by the service of a notice of motion. The contestee responded by serving upon the contestant his affidavit in answer to the notice of election contest, followed by contestee's return to the order to show cause. Thereafter, on the day set in the notice of motion for hearing the order to show cause, the matter came on for trial. On the day following the opening of the trial the contestee served upon the contestant his answer to the summons and complaint. The trial on the order to show cause proceeded regularly for one day and then was recessed for a period of twelve days for the accommodation of counsel and the court's schedule. Upon conclusion of the trial after the recess, the judge issued his decision from the bench wherein he determined the facts adduced were sufficient to issue an order for judgment decreeing that the contestee was guilty of illegal acts and violation of the Corrupt Practices Act, and directed that he be punished by being deprived of his nomination for the office of North Dakota State Senator from Dickey and Sargent Counties at the November 1972 general election. Two days later, on October 16, 1972, the trial court executed findings of fact, conclusions of law and order for judgment in which it directed that judgment be entered depriving the contestee of said nomination, and judgment was entered thereon. Following the service of the notice of entry of judgment the contestee took this appeal from the judgment. The trial court refused to issue a stay of execution of the judgment and, upon application of the contestee, this court entered a stay pending the appeal and review thereof and ordered that the appeal be heard before this court on October 24, 1972.

The contestee served and filed eighteen specifications of error. These specifications were consolidated into seven issues for the purpose of argument.

The first issue questions the jurisdiction of the trial court over the subject matter. The contestant in his pleadings does not claim the nomination for himself nor did he obtain the endorsed approval of the attorney general or of a judge of the Burleigh County District Court as provided under Section 16--15--01.1, N.D.C.C., nor did he obtain the endorsement of approval from the state's attorney or a judge of the district court as provided by Section 16--15--03, N.D.C.C., if either of these sections is applicable.

The two sections referred to are a part of Chapter 16--15 of the North Dakota Century Code pertaining to contests of general elections as contrasted with primary elections. A separate chapter--Chapter 16--04, N.D.C.C.--contains provisions governing contests of nominations of candidates in a primary election. The law providing for primary elections, containing the provisions for a contest of a primary election, was first enacted as Chapter 109 of the Session Laws of 1907. Section 31 of the chapter provided for contests; Section 17 made a number of sections of Chapter 8 of the Political Code of 1905 entitled 'Elections' a part of the primary election laws by reference; and Section 32 provided that the provisions of the statutes then in force in relation to elections were applicable to all primaries insofar as they were consistent with the primary election law.

Section 31 of Chapter 109 of the 1907 Session Laws has been carried into the various codes that have been adopted by this state since its enactment and presently exists, in almost the same form, as Sections 16--04--30, 16--04--31, 16--04--32 and 16--04--33 of the North Dakota Century Code.

Section 17 of the 1907 primary election law specifically incorporated as a part thereof Section 690 of Chapter 8 of the Political Code of 1905. This section is still carried in substantially the same form as Section 16--15--03 of the North Dakota Century Code. Chapter 16--15 pertains to contesting state or county elections. Section 16--15--03 provides that when a contest is brought by a person other than one claiming the office on his own motion that such contest cannot be brought unless the notice of contest is endorsed with the approval of the state's attorney or, in case of his absence or refusal, with the approval of the judge of the district court. In addition to this requirement for the contesting of a county election, the legislature, in 1963, by Section 1 of Chapter 184, Session Laws of 1963, enacted Section 16--15--01.1, N.D.C.C., which provides for a contest to challenge the validity of a statewide election or the right of any person to hold state office. It requires that a proceeding for this purpose, brought by one other than a person claiming the right to hold the office, must carry an endorsement of approval by the attorney general or, in case of his absence or refusal, the approval of a judge of the Burleigh County District Court.

It is the contention of the contestee that the court is without jurisdiction of the subject matter because the contestant did not claim the nomination for State Senator for himself nor did he obtain the endorsed approval of one of the officers described in Section 16--15--01.1 or Section 16--15--03, N.D.C.C. This argument is premised on the basis that either Section 16--15--01.1 or Section 16--15--03, N.D.C.C., is still a part of Chapter 16--04 providing for contests in primary elections by virtue of the fact that they were incorporated by reference at the time of the enactment of the primary election law in 1907.

The problem with this argument is that Sections 17 and 32 of the 1907 Act and their counterparts carried into subsequent codes were omitted from the Revised Code of 1943, and also from the enactment of the Century Code in 1963. Section 17 of Chapter 109 of the Session Laws of 1907 became Section 867 of the Compiled Laws of 1913. Reference to the reviser's notes discloses the reason for omitting this section from the North Dakota Revised Code of 1943:

'* * * s. 867, providing and listing the sections of the General Election Law that are applicable to the Primary Election Law is omitted, as by the revision of this present title, such sections are made applicable to the primary election;'

In respect to Section 32 of Chapter 109 of the Session Laws of 1907, this section became Section 882 of the Compiled Laws of 1913. It was also omitted from the Revised Code of 1943. With respect to that section the reviser's notes state:

'* * * s. 882, providing that present election laws in effect now (general election laws) shall be applicable to primary elections, is omitted as surplusage as the revision of this title has made such provisions applicable to primary as well as general elections;'

The parallel tables contained in the Century Code are to the same effect.

The legislature, in enacting the Century Code in 1963, also omitted these sections and we find no provision in the Century Code providing that the general election statutes on contests are made applicable to contests in primary elections. The legislature, however, incorporated into the Century Code Section 1--02--19, N.D.C.C., which provides:

'No statute, law, or rule is continued in force because it is consistent with the provisions of this code on the same...