State ex rel. Sathre v. Moodie
Decision Date | 02 February 1935 |
Docket Number | 6330 |
Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Section 87 of the Constitution conferring original jurisdiction upon the Supreme Court to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction expressly provides that: " No jury trial shall be allowed in said supreme court, but in proper cases questions of fact may be sent by said court to the district court for trial."
2. Under the pleadings in this proceeding there is an issue of fact involved properly triable to a jury.
3. Where a question of fact properly triable to a jury arises in an original proceeding in quo warranto in the Supreme Court and it appears that conditions exist which make it practically impossible to secure a trial jury, and where the parties to the proceeding waive a trial by jury and ask the Supreme Court to try the question itself, and it appears that the ends of justice so require, the court will hear and determine such question.
4. Under section 73 of the Constitution, no person is qualified for the office of Governor of North Dakota who has not resided within the state for the five years next preceding his election.
5. The term " resided," in section 73 of the Constitution means having had a residence, as defined by section 14, Comp. Laws 1913.
6. Every person has in law a residence where such person remains when not called elsewhere for labor or special or temporary purpose, and to which he returns in seasons of repose. Such person can have but one residence which he cannot lose until another is gained. Leaving his place of residence is not an abandonment unless he establishes another, and a new residence can be established only by the union of act and intent.
7. Where a person having legal residence in North Dakota removes to Minnesota, and there lives with his family in the same apartment for a period of approximately twenty months, and during such time registers as a voter as required by the laws of Minnesota, votes at the primary and general elections, and exercises the rights of a citizen of Minnesota, it is held, for reasons stated in the opinion, that he acquires a legal residence in Minnesota, notwithstanding his intention to return to North Dakota at some indefinite time in the future.
8. Section 72 of the Constitution, providing that the powers and duties of the office of Governor devolve upon the Lieutenant Governor in case of the disability of the Governor, does not differentiate between a disability existing before election and one occurring after election.
9. In event of the disqualification of the Governor elect, the election and qualification of the Lieutenant Governor supplies a successor to the former Governor or Acting Governor, and the powers and duties of the office devolve upon the Lieutenant Governor for the remainder of the term for which the disqualified Governor elect was chosen.
Original application in the Supreme Court for writ of quo warranto by the State, on the relation of P. O. Sathre, Attorney General, against Thomas H. Moodie and another.
Writ granted.
P. O. Sathre, Attorney General, and Francis Murphy, Special Assistant Attorney General, for relator.
M. W. Murphy, M. A. Hildreth, John Moses, John F. Sullivan, W. D. Lynch and C. J. Murphy for respondent Moodie. Alvin Strutz, for respondent Welford.
This is an original proceeding in quo warranto instituted in this court upon the application of the Attorney General. It involves the title to the office of Governor. In the information it is alleged that the respondent, Thomas H. Moodie, received a majority of the votes cast at the last general election for the office of Governor; that a certificate of election was duly issued to him, and that he has qualified and entered upon the discharge of his duties as Governor; and that the respondent, Walter Welford, at the same election, was elected Lieutenant Governor and that he has duly qualified as such officer. It is further alleged in the information that the said respondent, Thomas H. Moodie, did not possess the qualifications prescribed by § 73 of the state constitution and that he is ineligible to the office of Governor in this: (1) That he is not a citizen of the United States; and (2) that he had not "resided five years next preceding the election within the state."
The respondent Moodie filed a return wherein he denied the averments of the information and asserted that he was and is a citizen of the United States and that he had resided within North Dakota the five years next preceding said general election and, hence, possesses the qualifications which the Constitution prescribes for the incumbent of the office of Governor.
The pleadings in the case presented questions of fact properly triable to a jury. This court, therefore, entered an order that:
On January 21, 1935, Judge Buttz made the following report to this court:
Immediately after this report had been received by this court counsel for the respective parties were informed and directed to appear. They did so appear. The report was duly considered and in open court counsel for the respective parties announced that they fully acquiesced in the report and that they waived trial by jury and requested the Supreme Court to try all issues in the case, both of law and of fact. The question, therefore, presented itself whether in the circumstances this court should try and determine the issues of fact in the case.
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