197 N.W. 770 | N.D. | 1924
This is an appeal from a judgment quashing an alternative writ of mandamus and dissolving a temporary restraining order which had previously issued out of the district court of Morton Oounty, This alternative writ and restraining order had been issued ex parte and the writ was made returnable three days before the national delegate and presidential primary election. By them the secretary of state was restrained from circulating ballots unless they contained the name of Robert M. LaEollette as an aspirant for the Republican nomination for President. Hence, in effect, the merits of the proceeding brought to compel the insertion of that name on the ballot was adjudged in advance of the hearing. Upon appeal in the same proceeding, this court had previously reversed a judgment to- like effect and remanded the cause for an expeditious hearing. State ex rel. Kinzer v. Hall, ante, 693, 197 N. W. 769. After the issuance of this alterna
The. facts as they appear in the petitioner’s amended petition and affidavits submitted may he briefly stated as follows: More than three thousand citizens and electors had filed with the Secretary of State a petition requesting the printing of the name of Robert M. LaFollette upon the official primary election ballot, as a Republican candidate for flic office of President of the United States, to be voted by the electors at the presidential preference primary election to be held on the 18th day of March. Robert M. LaFollette is legally qualified to become a candidate for the said office, and it is alleged that he is an aspirant for the office, having made known such aspiration by word of mouth or by written, printed and published statements, and that the petitioners and electors signing the petition and causing the same to be filed had thus learned of his aspiration for the presidency. Upon the hearing in district court, the petitioner introduced a letter written by the Honorable J. II. Sinclair, a member of Congress from the Third North Dakota District, and addressed to the relator herein, dated February 21, 1024. He states the attitude of Senator LaFollette as follows :
“I also showed your letter to Senator LaFollette. The Senator feels very kindly toward the friends-in North Dakota, who are working for him, but bas no illusions about his chances of being nominated for fhe Presidency at the Cleveland Convention. He is intensely inter
This letter and the allegations and statements of fact referred to above, and which were embodied in a supporting affidavit, constitute the proof offered on behalf of the petitioner. The respondent’s return alleges that ballots were in process of being printed, containing the names of all the candidates filed for party nomination for the office of President of the United States, except that of Robert M. LaFollette. It admits the filing of the petition for the placing of the name of the latter upon the ballot. Tt alleges that on the 28th day of February, 1921 the respondent, the Secretary of State, received a telegram as follows:
"Washington, D. C.
Thomas Hall, Secretary of State Bismarck, North Dakota.
You are authorized and directed to withhold my name as presidential candidate at the approaching primary election March 18th.
(Signed) Robert M. LaFollette.
and that this telegram was verified and confirmed by a later telegram, as follows:
Washington, D. O.
Thomas Hall, Secretary of State Bismarck, North Dakota.
Your telegram asking verification by telegram this date withdrawing my name as presidential candidate is received. That telegram was genuine,
(Signed) Robert LaFollette.
It is alleged that there had not been presented or exhibited to the respondent any other evidence showing an intent or purpose on the part of the said Robert M. LaFollette to aspire to be a candidate of the Republican party for the office of President of the United States
The placing of names upon the presidential primary election ballot is governed by § 910 of the Compiled Laws for 1913, which is as follows:
'“In the presidential election years, the qualified electors of the political parties subject to this law shall have opportunity to vote for
The evident purpose of the statute touching the matter in controversy sufficiently appears from its language, wherein it states “the
Col. «I. II. Bloom,
Devils Lake, North Dakota.
Sorry to disappoint such loyal friends, but have refused to be a candidate in Nebraska. I hope the petition in your state can be withdrawn. If not please file a copy of this telegram with proper state officials and give to the press. If you desire to pledge delegates to Bryan democracy I have no objection, but I must not be entered as a candidate.
(Signed) W. J. Bryan.
This construction by the officer required to certify the names for the ballot is entitled to weight, 2 Sutherland, Stat. Constr. § 474; 30 Cyc. 1140, especially since the legislature has not seen fit to amend the law in this respect. Without determining the degree of proof required to establish that one is an aspirant within the statute, and without determining whether or not the simple request by the supposed candidate that his name be omitted from the ballot may be taken as conclusive that he is not an aspirant, we are clearly of the opinion that the sltowing made in the court below would not support a finding that Robert. ’M". LaFollette was an aspirant for the Republican nomination for Bresi