State ex rel Fosser v. Lavik
| Decision Date | 26 October 1900 |
| Court | North Dakota Supreme Court |
Application for a writ of mandamus, on the relation of Hans Fosser, against Andrew J. Lavik.
Writ granted.
Peremptory writ issued.
F. H McDermont, W. J. Maher, (Cochrane & Corliss of counsel), for relator.
One Hans Fosser, as relator, made an original application to this court for a writ of mandate to the auditor of Pierce county, commanding said auditor to receive and file a certain certificate of nomination, purporting to be the certificate of nomination for county offices for said Pierce county made by the Republican party of said county, and to print such nominations upon the official ballot. The alternative writ was issued, and upon the return day the defendant, by his counsel, moved to quash such writ on the ground that this court had no original jurisdiction of the case, for the reason that the case was not of such strictly public concern as is required by section 5165, Rev. Codes. It is true, this case involves directly only the nomination and election of county officers, but necessarily and inseparably connected therewith is the right of the citizen to vote for the regular nominees of his political party. It involves the exercise of the elective franchise, -- the most sacredly guarded franchise granted by the state. Indirectly, it involves the election of all the candidates named in the Republican column upon the official ballot, whether state, district, or county nominees, for the reason that the number of Republican votes cast in said county will depend to some extent upon who appear in the Republican column as the Republican candidates for the local or county offices. For these reasons, we think the matter is publici juris. As was said in effect in State v. Nelson Co., 1 N.D. 88 at 101, 45 N.W. 33, the court will judge for itself whether the wrong complained of is of the nature that requires the interposition of this court. The motion to quash is denied.
Defendant also answered to the alternative writ. From the writ and answer it is clear that when the Republican county convention of Pierce county convened in said county on September 29 1900, it was composed of two factions, bitterly opposed, and the ultimate result was a division; each faction claiming to be the Republican county convention, and each nominating a full list of county officers. The certificate of nomination as made by one faction was duly presented to, and received and filed by, the auditor. Subsequently the certificate of nominations as made by the other faction was presented to the auditor, but he refused to receive the same upon the ground that the certificate of nominations made by the Republican county convention was already on file. It is clear that the one duty of the court in this case is to determine which faction, if either, constituted the de facto Republican convention. It is not our province to correct parliamentary errors, or to scrutinize the parliamentary methods by which an organization of a convention was secured, if only an organization of the Republican county convention was effected. A mass of affidavits has been presented to us, but we accept the statement of facts as found in defendant's brief, adding thereto only matters that are undisputed. The call for the convention was regular in all respects, and fixed the total number of delegates from the county at 19. The caucuses were duly held, and delegates properly elected from all the precincts except one. In that precinct one Dolan was elected, not by ballot, as required by section 497a, Rev. Codes,...
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