State ex rel. Plain v. Falley

• Decision Date: 24 October 1898
• Docket Number: 6731
• Citation: 76 N.W. 996,8 N.D. 90
• Court: North Dakota Supreme Court

76 N.W. 996

8 N.D. 90

STATE ex. rel. CHAS. W. PLAIN v. FRED FALLEY

No. 6731

Supreme Court of North Dakota

October 24, 1898

Application for a writ of mandamus by the State of North Dakota on the relation of Charles W. Plain and others against Fred Falley, secretary of state, to certify relators' nomination. On the return of the alternative writ, the defendant's motion to quash and set the same aside was denied, and a peremptory writ issued.

Peremptory writ issued.

Templeton & Rex, for relators.

J. F Philbrick, Assistant Attorney General, for defendant.

BARTHOLOMEW, C. J. YOUNG, J., concurs. WALLIN, J., concurs in result.

OPINION

BARTHOLOMEW, C. J.

The relators in this case, Charles W. Plain, James Dobie, and J. H. Williamson, ask, at the hands of this Court, a writ of mandamus requiring Fred Falley, secretary of state, to certify their names to the auditor of Cavalier County as nominees of the "Independent and Democrat party" for the offices, respectively, of state senator and representatives for sad Cavalier County, the same being the Eighteenth Legislative District of the state. It will be necessary to refer at some length to certain statutory provisions, and also to epitomize the allegations in the alternative writ.

Section 498, Rev. Codes, reads as follows: "Any assembly or convention of delegates held for the purpose of making nominations to public office, or electors to the number hereinafter specified, may nominate candidates for public office to be filled by election within the state. Public printed or posted notice of holding such assembly or convention must be given at least six days before the holding of the same. Such nomination shall be made by delivering to and leaving with the officer charged with directing the printing of the ballots upon which the name is to be placed, within the time prescribed herein, a certificate of nomination for each candidate. An assembly or convention within the meaning of this chapter is an organized assembly of delegates representing a political party or principle which cast five per cent. of the total number of votes cast for member of congress at the last general election." The following section declares: "All nominations made by such convention shall be certified as follows: The certificate of nomination, which shall be in writing, shall contain the name of each person nominated, his post office address and the office for which he is named and shall designate in not more than five words the party or principle which such convention represents, and it shall be signed and verified by the presiding officer and secretary of such convention, who shall add to their signatures their post office address." Section 500 requires the certificates of nomination for state and legislative offices to be filed with the secretary of state, and section 503 provides that such certificate shall be open to public inspection. Section 504 reads: "Not less than twenty-five nor more than thirty days before an election to fill any state or district office the secretary of state shall certify to each county auditor within which any of the electors may by law vote for candidates for such office the name and post office address of each person nominated for such office as specified in the certificate of nomination filed with him."

The alternative writ, after reciting at length the facts showing relators to be eligible to the respective offices for which they have been nominated, proceeds to state that heretofore there has been in the state of North Dakota a certain political party known as the "Independent Party," and another political party known as the "Democratic Party; " that the principles of said parties were in many substantial particulars identical, and that it had been the policy of said parties in this state to center their nominations for specific offices, state, legislature, and county, upon the same individuals; that pursuant to said policy, and pursuant to notice duly given by the proper officers of said parties, respectively, said parties duly met in joint convention in the City of Fargo, on July 27, 1898, and placed in nomination a complete state ticket to be voted for at the ensuing general election; that the nominations thus made had been filed with the secretary of state, and by him certified to the various counties of the state. Further, that on September 30, 1898, and pursuant to notices properly given in each instance, the said Democratic and Independent parties of said Cavalier County met in separate delegate conventions at the City of Langdon; that conference committees were appointed, which resulted in a union of the two conventions, and the nomination of a single legislative ticket, under the party designation of "Independent and Democrat Party," and that these relators were the legislative nominees so chosen, and certificates of their nomination, in due and proper form, were filed with the defendant, and that he has failed and refused to certify such nominations to the auditor of Cavalier County. Upon the return of the alternative writ, the defendant moved to quash and set aside the same, on the ground that the allegations did not warrant the relief demanded. By agreement, the defendant also answered, without waiving his motion. The answer admitted, in effect, all the allegations of the alternative writ, except the fusion of the Independent party and the Democratic party in Cavalier County. As to that, it alleged that when the conventions met, in the City of Langdon, the Independent convention was composed of 44 members present in person or by proxy; that the conference committee appointed by said Independent convention reported against fusion with the Democrats, which said report was duly adopted; that thereupon a fragment of...