148 N.W. 662 | N.D. | 1914
This is an appeal from a judgment of tbe district court
The main question for determination is whether the district court had jurisdiction to hear and decide such contest. The trial judge placed his decision solely upon the ground “that the court has no jurisdiction in this proceeding to determine any of the matters or grant any of the relief asked by the contestant, and that the statutory provisions under which said proceeding is sought to be maintained have no application to legislative elections, and that there is no law under which said proceeding can be maintained.” In this we think the learned court below manifestly erred. Chapter 109, Laws 1907, governs the method of placing in nomination candidates for the various state, county, and district offices, including members of the legislative assembly. Section 31 of such act, which we deem controlling, so far as material is as follows: “Any candidate at a primary election desiring to contest the nomination of another candidate or candidates for the same office may proceed by affidavit within ten days after the completion of the canvass. In case the contestant shall set forth in his affidavit, upon information and belief, that the ballots in any precinct have not been correctly counted, and that he has been prejudiced thereby, the judge shall make an order requiring the custodian of such ballots to appear before him at such time and place, and abide the further order of the court. At the time and place stated, the ballot boxes shall be opened and the ballots recounted in the presence of the court. If it should be found that a mistake has been made in counting such ballots, then the contestant shall be permitted, upon application, to amend his affidavit of contest by including such additional facts therein.” The section then provides that all testimony shall be
A careful reading of tbis statute serves to convince us tbat it was clearly tbe legislative intent, in tbe enactment of sucb statute, to make ’the provisions of tbe general election laws, not only as to tbe manner of bolding tbe elections, but also as to tbe method of contesting elections, applicable to sucb primary elections, for § 32 of tbe act expressly so provides. It reads: “Tbe provisions of tbe statutes now in force in relation to tbe bolding of elections, tbe solicitation of votes, tbe manner of conducting elections, of counting tbe ballots and making return thereof, and all other kindred subjects, shall apply to all primaries, in so far as they are consistent with tbis act; tbe intent of tbis act being to place tbe primary election under tbe regulation and protection of tbe laws now in force as to election.”
We think tbat tbe provisions of § 31, supra, are too clear for serious debate, as to tbe legislative intent to confer upon tbe district courts jurisdiction to entertain a contest involving a nomination for member of tbe legislative assembly. It is as broad as language can make it; for it reads, “any candidate at a primary election desiring to contest tbe nomination of another candidate or candidates for tbe same office may proceed by affidavit witbin ten days,” etc. By no rule of construction known to us are we authorized to limit or restrict sucb language so as to make it apply only to certain candidates, even though we were able, which we are not, to discover any reason why tbe legislature might desire to single out legislative candidates, and withhold a remedy granted to other candidates.
In tbe recent case of Olesen v. Hoge, 23 N. D. 648, 137 N. W. 826, while tbe point here under consideration was not directly raised, we assumed tbat jurisdiction, existed in tbe district courts to bear sucb contests.
But counsel for contestee contends tbat there is no adequate machinery provided by sucb act, covering tbe procedure in sucb cases. He
The fact that the contestant is given another remedy, by mandamus or otherwise, if such be the fact, is immaterial. If another remedy exists, it is concurrent with and additional to the remedy here pursued. Such fact in no way tends to show that this statutory contest proceeding is not authorized.
But one other proposition need be considered. Counsel for contestee and respondent contends that there is nothing before this court for consideration or review, and that the appeal should be dismissed, for the reason that the appellant in taking the appeal did not comply with the provisions of section 4 of the new practice act, being chapter 131, Laws 1913, in that he failed to serve, with the notice of appeal, a statement of the errors of law he complains of. It is true no such statement was served. This omission, however, is not jurisdictional. Wilson v. Kryger, 26 N. D. 77, 51 L.R.A.(N.S.) 760, 143 N. W. 764. The court has the right, as we there held, to permit such omission to be supplied.
But we think counsel has misconstrued such statute. It was designed to, and does, effect a radical change in the rules of practice in the courts of this state. And by § 17 numerous sections of the Code of Civil Procedure were expressly repealed, including § 7058, Rev. Codes 1905, § 7655, Comp. Laws 1913, which section prescribed the contents of the statements of the case to be used on motions for new trials and on appeals, and, among other things, this section required the statement of case to have incorporated therein “a specification of the particulars in which the evidence is alleged to be insufficient to1 justify the verdict or other decision and of the errors of law upon which the party settling the same intends to rely. If no such specification is made the statement shall be disregarded on motion for a new trial and on appeal.” The new practice act prescribes in § 2 an entirely different method for the settlement of records for presentation on motions for new trials and on appeals, by providing in brief that a transcript from the official court reporter, when certified to be correct by the presiding judge, shall constitute the statement of case. The necessity, therefore, no longer exists for incorporating in such
The imperative necessity for an immediate decision of this appeal, in order that the same may be of any avail, has compelled us to treat the points raised in a somewhat cursory and brief manner, and not, perhaps, as fully as their importance demands.
The judgment appealed from is reversed, and the cause remanded for further proceedings in accordance with the views above expressed.