O'Neill v. Kallsen

• Decision Date: 25 October 1946
• Docket Number: 34374.
• Citation: 24 N.W.2d 715,222 Minn. 379
• Parties: O'NEILL v. KALLSEN, County Auditor.
• Court: Minnesota Supreme Court

24 N.W.2d 715

222 Minn. 379

O'NEILL v. KALLSEN, County Auditor.

No. 34374.

Supreme Court of Minnesota

October 25, 1946

Syllabus by the Court.

A writ of prohibition is limited in its application to the purpose of prohibiting judicial or quasi-judicial action in excess of jurisdiction and will not issue to restrain or prohibit individuals or nonjudicial bodies from performing purely political, legislative, or administrative acts.

O'Neill & O'Neill, of Pipestone, and Owen C. Donley, of Elk Point, S.D., for relator.

J A. A. Burnquist, Atty. Gen., George B. Sjoselius, Deputy Atty. Gen., and J. H. Manion, Co. Atty., of Pipestone, for respondent.

B M. Heinzen, of Ivanhoe, and Ordner Bundlie, of Pipestone, for Hans C. Pedersen, amici curiae on behalf of respondent.

MATSON, Justice.

Original proceeding for a writ of prohibition against respondent as county auditor of Pipestone county, Minnesota, to prevent him from placing the name of Hans C. Pedersen as a candidate for state senator for the twelfth legislative district (consisting of the counties of Pipestone, Murray, and Lincoln) on the official 1946 general election ballots for Pipestone county, and further to prevent him from certifying copies of the original voters' certificate of nomination (of said Hans C. Pedersen as such candidate for senator) for filing with the respective auditors of the counties of Murray and Lincoln.

In the 1946 primary, Emmett O'Neill, relator herein, and one J. V Weber were duly nominated as the two candidates for the office of state senator for the aforesaid legislative district, and the one receiving the highest number of votes was to be elected. The above named J. V. Weber died October 3, 1946, while still a candidate for senator. In the same primary election, Hans C. Pedersen was nominated as a candidate for state representative for the county of Pipestone, and his name as such candidate has been printed on the official ballots which will be submitted to the electors of that county at the 1946 general election. Although the time for withdrawing his name as a candidate for representative had expired, Hans C. Pedersen, on or about October 15, 1946, filed with respondent, as the auditor of the county of his residence (Pipestone), a voters' petition or certificate for his nomination as a candidate for the office of senator to fill the vacancy in nomination resulting from the death of J. V. Weber.

Minn.St.1945 and M.S.A. s 202.26, provides:

'No nomination for any office shall be made either by petition or otherwise within 30 days before the time of holding a general election, except nominations to fill a vacancy in a nomination previously made, or to nominate a candidate for an office in which a vacancy has occurred and for which no person is a candidate.'

In 1945, however, the legislature enacted L. 1945, c 190, applicable only to the primary and general elections for the year 1946, to facilitate voting by Minnesota electors serving in the armed forces of the United States. Section 14 of said act provides:

'The dates for the performance of acts in preparation for and the holding of the primary and general elections are changed as follows:

'Not later than August 8--Vacancies in nominations must be filled.'

Relator contends that Hans C. Pedersen has not qualified himself as a candidate for senator, in that no petition for nomination could be filed in 1946 subsequent to August 8; further, that he cannot be a candidate for both senator and representative, because the two offices are incompatible; and further, that the death of candidate Weber, with relator surviving as a candidate, did not create a vacancy as contemplated by Minn.St.1945, and M.S.A. ss 202.26 and 202.27. Before considering relator's contentions, we must determine whether a writ of prohibition is a proper remedy here.

The statutes of Minnesota confirming the writ of prohibition do not change its essential common-law use as a writ to prohibit judicial or quasi-judicial action in excess of jurisdiction. Home Ins Co. of St. Paul v. Flint, 13 Minn. 244 (Gil. 228). See, 20 Minn.L.Rev. 272. As an extraordinary writ issuing out of the supreme court, its application has been extended...