State ex rel. Purcell v. Anderson

• Decision Date: 02 October 1908
• Citation: 18 N.D. 147,118 N.W. 29
• Parties: STATE ex rel. PURCELL v. ANDERSON, County Auditor.
• Court: North Dakota Supreme Court

18 N.D. 147

118 N.W. 29

STATE ex rel.PURCELL

v.ANDERSON, County Auditor.

Supreme Court of North Dakota.

Oct. 2, 1908.

Syllabus by the Court.

Section 12, c. 109, p. 157, Laws 1907 (it being the Primary Election Law) reads: “12. Percentage of Votes Required for Nomination. If the total vote cast for any party candidate or candidates for any office for which nominations are herein provided for shall equal less than 30 per cent. of the total number of votes cast for Secretary of State of the political party, he or they represented at the last general election, no nomination shall be made in that party for such office, but if 30 per cent. or more of such vote is cast and there is more than one candidate for any such office, the person receiving the highest number of votes shall be declared the nominee of such party for such office; provided, further, that where there is more than one person to be elected to the same office the persons to the number to be elected receiving the highest number of votes cast for such office shall be declared the nominees of the party for such office.” Held, that the proviso limits the application of the 30 per cent. rule, construed in State ex rel. Montgomery v. Anderson, 118 N. W. 22, to candidates for nomination to offices of which there is not more than one of the same name to be filled at the succeeding election.

Under such proviso, when more than one office of the same name, within the same territory or subdivision, is to be filled, candidates for nomination to the number to be nominated, receiving the highest number of votes of the party which they represent, are the nominees of such party.

Appeal from District Court, Grand Forks County; Chas. F. Templeton, Judge.

Mandamus by the state, on relation of R. J. Purcell, commanding Hans Anderson, as auditor of Grand Forks county, to recognize relator as the duly nominated Democratic candidate for the office of county justice of the peace of that county, or show cause, etc. From an order sustaining a demurrer to the writ issued, relator appeals. Reversed.

Jeff. M. Meyers, for appellant. J. B. Wineman, for respondent.

SPALDING, J.

This is an appeal from an order sustaining a demurrer to the allegations of an alternative writ of mandamus, granted by the district court of Grand Forks county upon the petition of the appellant, commanding the auditor of said county in his official capacity to recognize and treat the relator therein as being a duly nominated Democratic candidate for the office of county justice of the peace of Grand Forks county, or show cause, etc. In an opinion this day filed, in the case of State ex rel. Montgomery v. Anderson, 118 N. W. 22, as county auditor, we have held that the 30 per cent. provision in section 12, c. 109, p. 157, Laws 1907, known as the “Primary election Law,” is valid. This proceeding is intended to test the meaning and validity of clause 3, being a proviso of said section. The whole section reads as follows: “If the total vote cast for any party candidate or candidates for any office for which nominations are herein provided for shall equal less than 30 per cent....