197 N.W. 769 | N.D. | 1924
This is an appeal from a judgment awarding a peremptory writ of mandamus directing the secretary of state to certify and print upon the ballot the name of Robert M. LaFollette as -candidate for the office of President of the United States at the presidential preference primary election to be held March 18, 1924. On March 1, 1924, petitioners presented an application and an affidavit to the trial court in substance alleging that a petition, signed by some three thousand electors of the state, had been filed with the Secretary of State requesting the name of Robert M. LaFollette to" be printed upon the ballot as a presidential candidate of the Republican party at the presidential preference primary election to be held on March 18, 1924. This petition had indorsed thereon the refusal of the attorney general to consent to the commencement of the action. This petition, together with the affidavit and refusal of the attorney general, was accompanied by a summons, signed by relator’s attorneys, requiring the secretary of state to appear before the trial court at 11 a. m.'on March 1, 1924, at Mandan, Morton county, North Dakota. These papers were served on the secretary of state at his office in Bismarck about an hour before the time designated in the summons. No appearance was made by the secretary of state, for the alleged reason that the time was too short. Thereupon, without framing issues or taking evidence, the trial court upon return of the papers issued its peremptory writ of mandamus which required the secretary of state to place the name of LaFollette upon the said primary election ballot. On March 3, 1924, the secretary of state appealed from the judgment and the writ. The cause was immediately placed upon the calendar of this court and heard on March 4, 1924, with attorneys for the respective parties present'.
In substance, the appellant contends that he was not given an oppor
“You are authorized and directed to withdraw my name as Presidential candidate at the approaching Primary Election March ISthY
Further, the secretary of state avers that, because of said telegram he did not place the name of said LaFollette upon the ballot and that lie will not do so, unless compelled to do so by order of the court; that, by reason of the telegram requesting the withdrawal of the name of said LaFollette, the secretary of state, in accordance with the view of said LaFollette, acceded to his request. Appellant further contends, r-liat it was his duty to withdraw the name of said LaFollette when it appeared that said LaFollette was not an aspirant for said presidential nomination.
Section 8460, Comp. Laws 1913, relating to the issuance of the writ of mandamus, provides:
“When the application to the court is made without notice to the adverse party and the writ is allowed, the alternative writ must be first issued; but if the application is upon due notice and the writ is allowed, the peremptory writ may be issued in the first instance. The notice of the application, when given, must he at least ten days. The writ cannot he granted hy default. The case must he heard hy the court whether the adverse party appears or not.”
It is clear on the record that there was no compliance with this statute in the court below. It follows that the judgment must be reversed by reason of the failure of the trial court to give an opportunity to the