State ex rel. McArthur v. McLean
| Decision Date | 12 October 1916 |
| Citation | 159 N.W. 847,35 N.D. 203 |
| Court | North Dakota Supreme Court |
Original application to the Supreme Court for the issuance of its prerogative writs in order to oust one Fred McLean from the position of chairman of the Democratic State Central Committee.
Application denied.
Petition denied.
Engerud Holt, & Frame, for petitioner.
Bangs Hamilton, & Bangs, and Halvor L. Halvorson, for defendants.
BRUCE, J. FISK, Ch. J., and BURKE, J., did not participate. Honorable W. L. NUESSLE, of the Sixth Judicial District, sat in their place.
Statement of facts by BRUCE, J.
This is an application for the exercise of jurisdiction of this court, and is brought to test the right of Fred McLean to the office of chairman of the Democratic state central committee.
The amended petition is as follows:
Comes now D. H. McArthur, and for amended petition respectfully represents unto your Honors and alleges:
That he is a citizen, resident, and legal voter of the state of North Dakota, affiliating with and is a member of the Democratic party, and at the recent primary election in this state your petitioner was nominated as the candidate of the Democratic party for the office of governor of the state of North Dakota, and is now such candidate.
That since said primary election the members of the state central committee of the Democratic party were duly selected and named in the manner prescribed by law, there being forty-nine members so selected as state central committeemen. A list of said members appears attached to the original petition herein and is hereby referred to and made part hereof.
That on the 6th day of September, 1916, twenty-one members of said state central committeemen so selected met at Bismarck as required by law, and there met together with them at the same time and place twelve other persons, each of whom held a proxy given to him by a duly elected committeeman purporting to authorize the holder of such proxy to attend such meeting of the state central committee, and act and vote for and represent the elected committeeman in the latter's absence.
That at said meeting the twelve persons so holding proxies were permitted to act and exercise the powers of regularly elected committeemen, and such holders of such proxies were counted in order to constitute a majority of said committee, although, as before stated, there were only twenty-one elected committeemen present at said meeting.
That at said meeting, composed as aforesaid of said twenty-one committeemen and the twelve persons holding proxies of absent committeemen, the majority of the persons so present at said meeting and pretending to constitute a majority of the state central committee selected and named one Fred McLean to be chairman of said state central committee and one Joseph Kelly to be treasurer thereof, and one W. E. Beyerly to be temporary secretary, and said Fred McLean and said Joseph Kelly accepted said respective offices and are now holding and exercising the same.
That neither said Fred McLean nor said Joseph Kelly were or ever had been selected or named as members of said state central committee, and, therefore, as your petitioner is advised and verily believes, they, the said Fred McLean and Joseph Kelly, were not eligible to said offices to which they were so named, and said meeting not being a majority of the members of said state central committee, a quorum of said committee was not present participating in said meeting, and hence all the acts of said meeting were and are null and void; and for the reasons aforesaid your petitioner is advised and verily believes that said Fred McLean and Joseph Kelly are unlawfully holding and usurping said respective offices.
That at said meeting so held as aforesaid the persons there present, pretending to be a majority of said committee, ordered and appointed an executive committee consisting of E. H. Stenwick, H. Nelson Kelly, H. D. Allert, John Sprafka, A. J. Schorer, Kenneth Ferguson, and Joseph Mann. That your petitioner is advised and believes that there is no adequate remedy for the unlawful usurpation of said offices by the said Fred McLean and Joseph Kelly except by the exercise of the original jurisdiction of this Honorable Court, and, therefore, your petitioner presents this petition in his own behalf and in behalf of all other citizens and electors of the state of North Dakota, and prays that this court issue its process to said Fred McLean and Joseph Kelly, and to the members of said Democratic State Central Committee, requiring them to be and appear before this court and answer this petition, and that this court thereupon adjudge that said Fred McLean and Joseph Kelly are unlawfully usurping said respective offices now so held and claimed by them, and that they, and each of them, be ousted therefrom, and be forever enjoined and forbidden to intrude into or exercise the functions of said offices, and that said State Central Committee be ordered and required to forthwith meet and properly organize in accordance with the law, adopt rules and regulations, and publish and promulgate a platform of principles for the candidates of said Democratic party at the coming election.
To this petition the defendants first filed a motion to dismiss the proceedings, which was as follows:
Come now the defendants in the above entitled action, and respectfully show to the court
1.
They each separately and all jointly object to the jurisdiction of the court and to the consideration by the court of the petition and amended petition served and filed in the above-entitled matter, for the reason that it appears upon the face of said petition and amended petition that the said defendants F. W. McLean and Joseph M. Kelly are not usurping or attempting to usurp, intrude into, or unlawfully hold or exercise, any public office or franchise within this state, or are doing or attempting to do any act, or hold or exercise the authority of any public office, within the state of North Dakota, and that the court has no jurisdiction of the subject of the action. 2.
That each separately and all jointly object to the consideration of the petition or amended petition in the above-entitled action, and move to dismiss the same for the reason that it appears upon the face thereof that the subject of the proceedings does not involve any public function, neither does it involve any matter in which the public is concerned. That it involves a mere private desire without a showing of perceivable benefit to the relator or any other person.
3.
They each separately and all jointly object to the consideration by the court of the petition and amended petition herein, for the reason that it appears upon the face of said petition and amended petition that the said defendants Fred McLean and Joseph M. Kelly were elected to offices or positions upon a political committee, which offices or positions are in no sense public offices, either civil or military, under the laws of the state of North Dakota.
That neither the state in its sovereign capacity, nor the public as a public, is concerned in the subject-matter involved and set forth in said pleadings.
That the relator is a private person, having no interest in the subject-matter other than a purely personal and private one, and that no benefit or result to either the public or to any person is disclosed by the pleadings.
That conceding all of the facts set forth in said petition and amended petition, there is not set forth such facts or such subject for consideration as calls for the issuance of an original writ by this court, or entitles the relator to the relief prayed for.
Wherefore, defendants pray this Honorable Court for an order dismissing said above-entitled proceedings.
They then filed the following demurrer:
Now come the above-named defendants and reserving to themselves separately and jointly all manner of advantage to which they or either of them is entitled by reason of answer or motion to dismiss, and without waiving any rights by reason of written motion to dismiss said above proceedings, and for the purpose of demurring to the pleadings and all of the pleadings on behalf of the relator and to the cause of action therein set forth, respectfully shows to the court.
They each separately and all jointly demur to the petition and amended petition of the relator above named and to the cause of action therein set forth, that the court has no jurisdiction of the subject of the action therein set forth, on the ground and for the reason that the said office of chairman of the State Central Committee of the Democratic Party in the State of North Dakota, and that the office of treasurer of said state central committee, is not a public office either civil or military or any franchise within this state, neither does said office or either of them come within the provisions of any law of the state of North Dakota conferring upon this court jurisdiction to hear and determine the right thereto in these proceedings.
They each separately and all jointly demur to the petition and amended petition of the relator above named, and to the cause of action therein set forth, for the reason that the plaintiff or relator in said proceedings has no legal capacity or right to institute and prosecute such proceedings, it appearing from said pleadings that the interest of the relator is a purely personal and private interest, and does not involve any governmental function or public concern.
They each separately and all jointly demur to the petition and amended petition of the relator...
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