State ex rel. Hagendorf v. Blaisdell

• Decision Date: 14 September 1910
• Citation: 20 N.D. 622,127 N.W. 720
• Parties: STATE ex rel. HAGENDORF et al. v. BLAISDELL, Secretary of State.
• Court: North Dakota Supreme Court

20 N.D. 622

127 N.W. 720

STATE ex rel.HAGENDORF et al.

v.BLAISDELL, Secretary of State.

Supreme Court of North Dakota.

Sept. 14, 1910.

Syllabus by the Court.

This court will not decide grave constitutional questions, raised by original applications for writs which must be acted upon summarily, except in instances when the circumstances are such that a decision is imperative and the application could not readily have been made earlier.

Chapter 109, Laws 1907, known as the primary election law, is not intended to provide for and regulate the nomination of candidates who do not stand for or represent a political principle or party; it being intended only to regulate party nominations.

Section 501, Rev. Codes 1899, providing for nominations by petition, and the placing of the names of candidates so nominated upon the Australian ballot for use at the general election, is still in force, and provides a method whereby persons may be nominated as candidates for state and congressional offices as representing a collection of individuals too few in number to be entitled to a party ballot at the primary or a separate column on the ballot at the general election.

Section 501, Rev. Codes 1899, supra, makes certain requirements of parties nominated by petition to entitle them to have their names placed upon the Australian ballot, and, among others, that the certificate of nomination or petition shall state in not more than five words the party or principle which the candidate represents. Held, that this party designation should appear after the candidate's name as printed on the Australian ballot.

Neither chapter 109, Laws 907, nor section 10 thereof, supra, which reads, “Any citizen otherwise eligible by law, affiliated with or representing the principles enumerated in the national platform of the following parties, are eligible to nomination under this act; the Republican, the Democratic party, or any party designation that cast five per cent. of the votes cast for Governor at the last general election, and it shall be unlawful for any person to call for or vote a ballot at the primary election herein provided for, except a ballot representing the party or principle with which he affiliates, * * *” is invalid as furnishing no method by which new parties may secure the printing of party ballots for use at the primary election, inasmuch as a party represented by candidates whose names have appeared in the individual column, followed by the party designation on the Australian ballot used at the general election and who have received 5 per cent. of the votes cast for Governor, is entitled to a separate ballot at the next primary election.

Held, the Legislature has, within reasonable limits, the power to determine how many voters acting together for the purpose of making nominations shall be entitled to a party ballot, and that the provision above quoted providing only for the printing of ballots for parties casting 5 per cent. of the votes cast for Governor at the next preceding general election is a reasonable regulation of an election held to make party nominations.

Additional Syllabus by Editorial Staff.

Under Supreme Court Rule 39 (91 N. W. xiii), requiring a memorandum of authorities to accompany an original application for mandamus, the court may decline to consider an applicationwhere relators' memorandum brief has no authorities in support of their contention, and no one appears in behalf of the respondent, especially where the application was not brought to the court's attention until three or four days before the decision was required.

Mandamus by the State, on relation of Arthur Hagendorf and others, against Alfred Blaisdell, Secretary of State. Writ denied.

Arthur Le Sueur, for relators.

SPALDING, J.

This is an original application in the name of the state, on the relation of Arthur Hagendorf and other citizens of North Dakota, for the issuance by this court of its writ commanding the Secretary of State to cause to be printed upon the official primary election ballot to be used at the primary election to be held throughout the state on the 29th of June, 1910, the names of the relators as candidates of the Socialist party for nomination to the several congressional and state offices, and directing the Secretary of State to file the petitions of the relators and print an official ballot of the Socialist party for such primary election. Rule 39 (91 N. W. xiii) requires a memorandum of authorities to accompany such application. The relators have filed a memorandum brief, but it cites no authorities in support of their contention, and in no manner aids the court in reaching a decision of the very important constitutional questions sought to be raised. No one appeared in behalf of the respondent. Under such circumstances, this court would be amply justified in declining to consider the application, and particularly so in view of the fact that it was not brought to the attention of the court until three or four days before the date when the ballots for the primary election are required to be printed. Other courts have refused to decide grave constitutional questions in a summary manner on applications of this nature when no excuse was shown for postponing the application until a day so late that it became impossible to give it that careful consideration and devote to the subject that research which such questions require, and which the court is entitled to have the opportunity to make except in rare and imperative instances. Our first impression was that we would decline to issue the writ on this ground alone, but in view of the overwhelming weight of authorities against the position taken by the relators, and the apparent soundness of the reasoning of the several courts which have passed upon these or analogous questions, we have concluded that we may as well settle it at this time on the merits. We, however, deem it proper to call the attention of the bar to the propriety and the necessity of presenting applications which require the...