*1 latter consideration basis in the on this for ány record appeal be re- as the event must inasmuch question; judgment we versed for the do already pointed out, express any reasons on the effect of the easement of company opinion railway if easement is shown to exist. right-of-way, be and it reversed and the The must judgment appealed remanded for further not inconsistent with this proceedings cause opinion. JJ., Burr., concur.

Burke, Nuessle, Morris, No. 6454.] [File DAKOTA REL. W. F. SCHMEDING, OF NORTH EX STATE JUDI OF THE SIXTH Petitioner, v. DISTRICT COURT COUNTY, IN AND FOR MORTON CIAL DISTRICT F. T. Lembke, OF The Honorable STATE NORTH DAKOTA, W. J. Court, Godwin, Respondents. Said Judge (271 137.) N. W.

19» *3 19,

Opinion January filed Orvzm,. "C. Lieberb for petitioner. & and Francis

Hanley Hanley, Murphy, respondents. J. W. Burk, J. Godwin commenced an action in tbe district court of Morton in which W. F. his counsel 0. Liebcrt county, Schmeding, A. E. B. B: M. J. E. Tobin, Erberle, and W. Crum, Shaw, ' to enjoin a were made defendants, seeking Haight, notary public, defendants a contest. from proceeding 30th district constitutes the senatorial The of Morton to three members in the house entitled legislative assembly there were six candi- At the last general representatives. W. J. for these offices. the case Godwin, dates plaintiff votes, the third number 3,233 received review, votes, being highest .of W. E. received the fifth 3,092 votes, highest Schmeding being and a certificate of election was issued to W. J. votes, number of 1936 W. E. Godwin. On November served a notice Schmeding and on December Godwin, of contest served notice of upon B. W. M. J. Tobin, Judge Shaw, taking A. E. Erberle before E. B. auditor, and a Haight, duly quali- fied who issued to each of these witnesses. notary public, subpoena is some between the interested There disagreement parties .to and their effect—much of which becomes immaterial. facts legal states under the The that force compelling complaint Shaw would not as witness as Judge only appear subpoena with him him but would the ballots held bring subpoena, them to deliver the said that the seals on said custodian, notary, the, be broken for the ballots would purpose opening examining this contest; in furtherance of and that M. J. Tobin ballots would in his It official is also claimed in the custody. bring papers complaint notice of contest no was or verified that Schmed- proper prepared the notice “did not contain nor venue,” show “in what ing; *4 the said or before what contest was body purported instituted, court in what such were nor be county proceedings attempted brought; did notice of contest not have the that such State’s approval . . . . . . of Morton and the said county although Attorney an endorsement of two for had sureties such sureties costs, contest clerk of the district court of Morton by were approved . . . .” . . other . or of further that this contest was alleges The complaint brought pre- in that it was instituted “before the final determination maturely. of Canvassers” and State Board said general Schmeding made defendants are with others said con- intending proceed and test, break the seals on the the same ballots, cause to be ex- publicly hibited, destroy ballots and the secrecy there- preservation of under and seal under lock and thus make it possible persons with the tamper said ballots after seal has been broken and in that case “in the event and contest should be proper legal be- instituted fore the House of Representatives State of North Dakota,” the will plaintiff bo aat placed and this act disadvantage would “deprive him of his legal have ballots unmolested and preserved and in undisturbed their true and condition as original contemplated and wall law, him of his completely deprive in de- legal rights his claim to the officeto which fending he was elected ... in the event a contest should later proper be instituted before the House of or in the Representatives event the said contest should be purported deemed proper legal.”

In this action an order was issued the district directed court, the defendants them requiring to show cause an al why injunction order should not issue and provided:

“1. That, during of this pendency action and until further order of this Court, the W. F. Defendants, and C. Schmeding Leibert their Crum, servants, agents, attorneys be employees, enjoined and restrained from further under proceeding the election contest men- tioned and described in the wherein Complaint, W. Defendant, F. contests the Schmeding, election of the Plaintiff as member of the House of Representatives the State of North Dakota from the 30th Legislative District; enjoined restrained from tak- ing witnesses in depositions connection such contest, from particularly taking B. W. depositions of Shaw, M. J. A. Tobin and F. or Erberle, from such requiring Defendants last named to and submit the produce original records of the election held on November 1936, in 3rd, Morton North County, or the Dakota, ballots cast for the office original of member of the As- Legislative from the 30th sembly District Legislative of the State of North Da- or from kota, seals in which breaking such ballots are enclosed or or from or sealed, producing exhibiting before the Defendant, E. B. Haight, on the notary 4th public, day December, 1936, time, notice to take deposi- tions, otherwise, subpoenaing taking *5 other in behalf as witnesses of the W. F. any persons Defendant, in the said contest. Schmoding,

“2. That, and this action until further during pendency order of this B. Court, Defendants, Shaw, W. and individually his official M. Judge Tobin, as and J. capacity Court, County and in his individually official as and capacity County Auditor, A. F. and in Defendant,. Erberle, official individually any capacity lie and their may servants, and occupy, attorneys agents, employees; be each and restrained from and as enjoined appearing testifying or witnesses their E. B. giving depositions before as Haight, notary of Morton North Dakota, the District Boom public County, Court in the Court House of the County of Mandan, Morton City County, on the Dakota, North 4th at 10 day December, o’clock 1936, a.m., other or at time any and witnesses place, as for the testify Defend- F.W. ant, connection with the contest Schmeding, mentioned in the and be described enjoined and restrained Complaint; from pro- or the ballots cast for members of ducing exhibiting the Legislature the 30th from District of State of North Legislative Dakota election held on November general from 3rd, breaking the seals around such or in ballots, were toor they enclosed, manner with, other tamper permit person tamper with, same; and that the B. W. Defendant, Shaw, individually of Morton County North Judge servants, his County, Dakota, agents, attorneys employees, restrained enjoined the said producing ballots so cast at the said exhibiting B. before E. Defendant, Llaight, and as witness notary public, in the said or from in which contest, seal breaking ballots enclosed and sealed.

“3. That, during this action and until pendency further of this E. order B. court, Defendant, her Haight, servants, agents, be enjoined and restrained attorneys employees, from issuing cast any subpeena ordering requiring ballots production the office election for general at the member of the Legislature 30th District of the of North Legislative State Dakota at the gen- held in eral election Morton North on County, Dakota, 3rd, November fromor W. M. A. requiring Defendants, Shaw, B. J. Tobin, Erberle; F. witness, therewith, connection testify *6 202 there-

or or to break the seals to submit or exhibit such ballots original of on the 4th of De- at such or of the taking depositions day hearing 10 at and be en- time; at o’clock any cember, a.m., wit- and of the said restrained from joined taking nesses before of Morton County, last named as her, notary public the, Mandan, in North District Court Rooms of City Dakota, 4th 1936 at North on of Dakota, Morton County, day December, the hour of 10 o’clock in forenoon of that or at other time day, or place.

“4. in and order the meantime until further of this court, That, Defendants, and each of their them, servants, agents, attorneys are and restrained hereby enjoined doing employees, mentioned in and 3 acts acts hereof, paragraphs the Plaintiff seeks to the Defendants from enjoin committing, set forth in the complaint.” The case to be reviewed is where contestant not one seeks of the courts. made in the ex- was court, support Application of its all ercise control of inferior general courts, superintending an writ addressed to the district court of the sixth appropriate judicial in and for further said district Morton staying proceedings court in that forth that said action the defendants action, setting therein were restrained from further in connection with proceedings contest. An order to show cause was mat- issued ter to this court for determination. presented

Under the 1008 of the as amended Supplement by § 133 of Session Laws of 1935 the each election judges chapter all ballots take counted them those precinct except are void and fold them in manila en- securely wrappers dorse on each the number of the wrapper writing print precinct on which the election was held “and seal such date securely wrap- them wax and on with wax scaling stamping pers by sealing a metal the name of the for that stamp provided purpose, so that said cannot without breaking wrappers opened seal, . . ... mail . said ballots with those return, , together of the void, to the county judge” county. found B. W. and for Shaw now last has been many years Judge past of Morton Said county. the county judge Supplement §

203' amended of the Session Laws of 1935 that: chapter provides . . Immediately upon receiving ballots, county judge shall therefor to said give receipt and shall judges election, place them order properly arranged numbers in boxes precinct which shall be locked. Said boxes shall be fire- securely placed vault and shall be for four proof securely kept months, opening so, them nor one inspecting else lo do allowing any except upon court, election, order in case contested or token it shall be neces- *7 them at a trial produce sary committed at election/' for offense The served subpoena upon Shaw him Judge required to appear at the courthouse on county Morton December 4, 1936, testify as a witness for the relator herein him with required bring “at him said time to said ballots cast place party for officers, state candidates in including legislative the last general election, poll of said books election, also all envelopes, affidavits, applications for absent voters’ ballots used in connection with such last general in Morton North county, Dakota.”

The not judge custodian of the books of poll the election nor of the affidavits, “envelopes, applications absent voters’ bal- lots” used connection with the election. Nor is he the custodian of the ballot boxes.

The defendant M. J. Tobin is now and for some time has been past auditor of Morton county and the served him subpeena upon him to to the bring the “record of hearing applications for absent voters’ ballots and lists of voters registered for each of the of Morton precincts North county, which Dakota, were used in connec- tion the last election . . general .,” were in his custody. A similar was made served subpoena upon Erberle. defendant matter

The before us for determination is the legality the action of the district court —is the before said showing court sufficient to invoke its if so far jurisdiction, how should be ? reaching its order The merits of the contest are not before us. 2

Article of the Constitution of the State deals with legislative in a department, vesting senate and power a house of 47 Section representatives. Constitution “Each provides: house shall be the of the election returns judge qualifications its own members.” means sole This v. 25 Corbett judge. Naylor, n 204 has A. oí' the government I. 57 308. “No other

R. 520, department that subject. to adjudicate upon Constitution any authority com full and each is comprehensive,' The grant power (to house) no contains for the Constitution It is necessarily exclusive, plete. or share branch of the Legislature delegate words either permitting It must remain where the sovereign authority that power. 282 v. Mass. it.” Board of Registrars, state has Greenwood placed 184 N. 390. of our Constitution 74, leg E. Under to deter confer the courts power islature could even upon See State mine who was entitled to a seat the legislature. finally P. v. Ct. 145 721. Neither ex rel. Smith District 50 Mont. 134, vested in nor the two houses “can house, abridge together, power of one of a final decision as to the each house separately qualifications its or transfer that other tribunal or officer.” to any members, power v. Am. Van Winkle 551, 189; State v. Kan. Gilmore, Rep. decision, 362. 12 N. J. Mis. R. 175 A. Nor does the Caffrey, v. of Canvassers control. Anderson Blackwell, of the State Board 167 S. E. cannot S. C. even Consequently, legislation or direct either in a contest matter. house hamper, limit, Legislation to the exercise of is not but does not power; necessary pre vent in the interests of and to facili *8 the legislature, orderly procedure its law how a contest be by tate work, indicating may initiated, of said 68 'of the Constitution —a Article part provides, § 2— “The shall all laws into legislative assembly pass necessary carry of this constitution.” Such effect however, provisions legislation, either house in does not in bind the election returns any way judging of of its members. and qualifications any The house of has representatives over its continuing jurisdiction it at time may members and the member’s term. any during exercise its own motion it into the election returns inquire may quali On of its fications it members, despite legislation ináy permit anyoné a or furnish information contest, to initiate which will set this power house Its are not operation. rights failure to abridged within the time fíxéd statute. commence See State ex proceeding v. District Ct. Mont. 145 P. 721. rel. Smith ' for its own convenience may The permit depositions house to be -notaries justices, before other it any taken person designates!

20& Such officials have no decide even matters, though- authority house to make final conclusions. The empowered authority itself, and such of the house. State officials are commissioners merely v. ex rel. McKusick 33 Minn. have N. W. Peers, They no judicial do no functions, acts, finally they judicial they pass no of the courts upon questions. of the house—not They agents —nor can the courts interfere with officials in what the these doing The two of Dakota legislature houses the North permits. legislature have the. heretofore mode agreed upon procedure —doubtless each purpose house in at correct conclusions facilitating arriving case qualifications election of a member is called ques tion and should be Such method of is found- investigated. procedure in Article 23 of the 1070 to Compiled Laws, being §§ Political Code. These sections must be interpreted light of each and unless refer powers house, contests' they of a different are not type, affected they by statutory provisions gov the other fair erning cases where a arises- type, except implication from the 1070 to 1089 the- provisions inclusive. Being §§ order of each express house with reference matters be exclusively to each these sections are be longing house, ex interpreted being clusive of or act on the of those authorized to power part take act under the perform these sec tions. When each house election and proceeds judge qualifica tions of a member of the it these house, may ignore provisions entirely, it may contest to time permit brought by anyone during the term of the member involved. to the notice of contest

According defendant would be Schmeding entitled to the certificate of election had the votes been canvassed prop- Godwin would be erly declared defeated. plaintiff Section 1070 of the Laws “When Compiled provides: any person intends to contest the election of a member of the assem- he within ten after result of bly, may, days election shall have been determined the board notice in canvassers, give writ- *9 to the member whose seat he desires to contest of his intention ing to contest the and such notice shall same, specify particularly which he relies in the contest.” grounds upon receive Each house knew that it could information from source it saw could or fit, information,'' permit to furnish such any person could initiate on not the inten- its own motion. It was proceedings tion of the to or legislature limit to question proceedings authority to a person seat either house. n Were the action one in the district court pending seeking brought to initiate a contest under of these sections, seeking provisions to invoke the he be authority would to legislation, required show he had himself the terms statute brought within of the and he would -be confinéd to the limits therein. But the contestant prescribed is not to the court for aid. He appealing is not invoking jurisdic- tion of the court and we must the court determine whether may any circumstances his hand as stay requested. " The of each house be made at time. Each house inquiry may notices of contest or information facts iuay accept regarding long after the date 1070. The house is concerned with prescribed not § whether 'a contest is a too late brought prematurely period, of whether it is will consider the for the question contest house to determine without reference to the is It § for the court whether contest was say brought prematurely at too late a date. This has authorized who intends legislation anyone to contest the of a member of either house to notice of his give intention and take Section and follow- proceed testimony. sections method for the of this ing prescribe taking testimony be taken in manner and that such depositions may provide upon of Civil the notice the Code for the Procedure prescribed taking in civil actions and any justice depositions notary public where the is to be taken authorized testimony peace n to issue a the attendance of witnesses, subpoena compel is authorized to issue this justice sub- notary public peace him and direct witness to before at a time and poena appear place named therein his that the witness cannot give testimony, except out of which he or is he to attend resides served Provision made for the taking subpoena. witnesses, rules laid down as to how of non-resident whom how the ex- forwarded, is to transcribed, téstiniony are to be paid. penses n ' n on the who has been sub- is no complaint part anyone There

207 testi- to avoid giving or seeking is No witness complaining pcenaed. him to appear. to. compel no aid of court sought mony, or annoyance to inconvenience were subjected a witness being If then to the subpoena, for failure obey with penalty threatened or not to whether subpoena on his could inquire application court within himself the contestant had brought in a case where eras issued subpoena. the issuance of the statute authorizing terms to scour the contestant desires here. If not the situation This are to willing ap- witnesses there, affidavits here take country, mat- That is a interfere. not the courts to it is for depose, pear the courts should It is well settled that to the house. submit ter unless contests to take not assume authority any steps See to the extent given. and then authorized, only specifically clearly 169 W. N. 141 Minn. 499, ex rel. v. Nelson, State Norwood Until legis- the legislature. The contestant submits his showing a a recount or recan- has acts thereon he no apply lature vass. election returns determining

It is true the action of the house but does character, a judicial of member is qualifications con- that the general make the house such court superintending inferior Auditor court over courts applies. trol given by supreme 89 W. 488. Mich. 51 N. 552, Gen. v. Menominee County, 4 La. Ann. 482, 40 So. 598, lays ex rel. O’Donnell v. Tissot, State have no to take the that the courts “power the rule down nor the to cause contests, authority to such of witnesses relating and the seals thereon court, placed to be produced ballot-boxes bal- the boxes removed, of election opened, the commissioners ex- to have the courts Here an was made recounted.” attempt lots it was a that- amine ballots on theory proceeding perpetuate more dispose and assist legislature testimony does not re- the contestant have but an election in contesting speedily, to assist him. to the courts course issue that because some is connected mean

This does not necessarily from con courts debarred assembly, seat the legislative hear and determine whether it. Courts have jurisdictions sidering ex rel. v. issue (State McAvoy nomination should a certificate board of or whether the canvassers 111 P. 60 Wash. 420, 401) Gilliam, 208

should issue a rel. v. certificate of election. ex Sherwood People State 129 N. 29 E. L.R.A. Mad 646; Y. N. Canvassers, 345, v. den Election 280. These are Comrs. Mass. N. E. *11 ministerial actions —duties various officers. The involved of principle determines the of As rel. nature the issue. shown State ex Wil liams v. 20 N. D. W. Meyer, 628, 127 N. courts have 834, the power to direct the of county auditor to file the a candidate for petition senator the direct of name the ballot. This publication his upon does not the constitutional of each house to of infringe powers judge the election returns and of its own members. qualifications

Section 1084 “The officer provides: before whom is any deposition taken shall have to of on require power production papers, and, the refusal or of and deliver neglect person produce up any in his papers to such possession election, pertaining produce certified or sworn of the same in case are official copies they papers, shall be to all persons liable penalties prescribed § and, All thus all certified or sworn of offi- papers produced copies cial shall be papers transmitted with of officer, testimony to the for witnesses, state secretary use the legislative assembly.”

The vested notaries to take powers justices in a contest for the seat is not legislature judicial but rather power, such as be vested might or in commissioners, a committee one the houses. ex State rel. McKusick v. 21 Minn. N. W. Peers, 860. As said therein, “Over their actions the courts have no super- vision more than over the action of committee of one of the For this the writ of reason, .houses. prohibition will not issue to restrain them, unless assume functions they those beyond with which are clothed these they judicial in their sections, character.” is not is As it claimed to make notary attempting findings pass it he is clear is question, upon any exercise attempting judicial functions. the orders

But contained in notary public di- subpoenas rected to county judge auditor, these requiring officials to and surrender bring them custody the ballots which and other election records of are the they custodians, present an different The entirely question. notary has no public power term “papers” The quoted. 1084 already is him by given than what § official papers, refer to does not clearly very as used that.section of official papers. in case for certified copies is made for provision are official are custodians officials The records of these cus- surrender statute, The county judge, by papers. forbidden admitted court. It without an order of the ballots tody the Session 133 of was secured, chapter of the court no order an order of their surrender upon Laws of providing be neces- it shall or when case of contested election, “in court is only election.” committed at offense at a trial for any them sary produce court before the matters which come this means clearly Very the house in an It is true that investigation for determination. surrender of the bal- has a demand possession body it deem in such as may prop- counting way for examination and lots of the court. nor an order statute for that er. It needs no purpose *12 its members of of to the qualifications The constitutional power judge all docu- the of the to require production includes power by implication for “the of (our) into effect, provisions this power ments carry words, unless, by express are mandatory prohibitory constitution has spoken The legislature already are declared to be otherwise.” they been Nowhere has authority given of these ballots. as to the custody take the authorized to deposi- of to a notary public justice peace ballots, the of the in to require production tions a contest legislative interference the of seals, custody, of the change the breaking the Session Laws of of 133 of with chapter the provisions the bal- the of can not require production the notary Clearly public do. Neither has the custodian the itself whatever house lots, may unless surrender them to anyone the of ballots the right authority. by proper has no that the district court authority

But the is raised question the that the courts ballots; from the enjoin judge producing county with refer- control or direct anything have no authority whatever control legis- courts have no of While the ence to a contest. legislative the have a right interpret nevertheless the courts lative contests, affects mat- these sections 1089 when resort to 1070 to §§ can be no ques- control. There do have ters over which the courts Mr. but the the has Godwin, tion what in plaintiff injunction suit, in vital that interest that the ballots are seeing protected properly, custodian thereof them the and that the official legal keeps safely, is The shows that the duty being performed. complaint judge county to surrender is the mistaken that the custody prepared theory commissioners have require the authority production ballots. As the we have these been shown, commissioners have not so clothed with the the power house which legislature they be commissioners. It is not the house of which is may representatives the of the ballots. There demanding production is no reflection' upon the good We take com- integrity judgment county judge. as it stands, time record does not show plaint present has refused to ballots —in judge produce fact, record shows that he is to do so under the that he prepared' theory is do so. required to is a matter Safeguarding ballots of extreme importance democracy where will of the governs people action of the State. The ballots are the of the will of the expression in choice all of officers people matters submitted to the people. is The the official county judge with the charged duty preserving in the them condition were delivered and not they to him, citizen interested of the only every ballot safe- seeing purity guarded, but those affected have a the contest interest special that the seeing To whom can duty turn for performed. public enforcement of this but to the courts? duty By enjoining judge surrendering ballots, the courts custody are not way interfering power prerogatives either' house courts legislature. The the ballots in the preserving form, *13 in and with the official the place, the What provided legislature. have we said with reference to the in county judge to applies' principle the official to be the kept papers county auditor..

Plaintiff the Godwin cites case of State ex rel. v. Circuit Ct. Ingles S. D. N. W. 278. AAIhilethere is a remarkable similarity between this South Dakota case and the case involved here, we not that decision as on all prepared adopt involved authority points here. The of the in this scope injunction issued case is-such as by its terms would the very defendants prevent giving testimony or in started to be contest said and at in the time any place, any district hold the We to be contemplated. the said'by ones complaint tampering to prevent an injunction had issue jurisdiction court in- the ballots; but the custody or the change with the ballots the defendant its is in nature. Certainly issued too broad junction from initiating his not counsel should Schmeding prevented witnesses. from willing in nor a contest this case securing testimony contest, the We are not witnesses subpoenaed saying to obey subpoena could for failing be.punished already brought to the subjected penalties pre- in State would be or the courts to us. matter is submitted can determine that when the scribed. We has Court Tn is to indicate the Supreme Dakota there nothing South in and the contestant over the lower courts jurisdiction supervisory Court. an the Supreme that case commenced original proceeding it and bases upon where he commences an proceeding Clearly original but with the complied statute; he must show he statute, to the subject the Godwin case, case at bar he the defendant -for The effect of injunction injunction. penalties disobeying all time, him contest at at any would be bringing prevent con- we it advisable to exercise the as the time is short considered stitutional prerogative supervision. in the need the other raised action for questons

We not pass upon injunction.

The members of court are also all that: agreed In far the District so order issued Court en- restraining “from exhibit- joins Morton county judge producing the ballots cast for from the 30th ing Legislature members Leg- islative of the State of North Dakota at the general District held on November or from seals around such 3rd, 1936, breaking were enclosed manner they tamper ballots, n same,” is con- with, tamper permit person order was issued. cerned, restraining properly In far order so directs auditor restraining the election on and submit the records of held Nov- “produce original on Dakota,” 1936 in North file his 3rd, ember Morton county, ; was issued. office injunction properly concerned, *14 A the of court of the that: majority opinion In far as the tak- so order “from enjoins defendant restraining (cid:127)of in connection with witnesses such contest” ing deposition any to determine the herein to a seat plaintiff in the house of “or from or representatives; subpoenaing taking depositions of other as any witnesses behalf of tire defendant” Schmed- persons in said contest; or of the defendants from tes- ing, any and appearing as witnesses or their B. as tifying before E. giving depositions Haight or of their notary public; “any and em- servants, agents, attorneys, “from as witnesses or ployees” appearing testifying their giving ... at time or depositions in connection with any the con- place” test mentioned is concerned, the order complaint restraining was issued. improvidently

It is therefore that a writ be ordered issued supervisory directing district court Morton or the Honorable F. T. Lembke, thereof, Judge modify the order restraining involved in this pro- so as to eliminate ceeding therefrom the enjoin defendants “from taking deposition witnesses in any connection with such contest” and “from or the subpoenaing taking deposi- tions of or witnesses behalf of the persons defendant” Schmeding said contest or of the defendants from appearing as witnesses their B. testifying E. giving depositions before their Haight notary public, “any servants, agents, attorneys . . . employees appearing witnesses testifying their ... giving time in connec- place” with the tion contest mentioned in the complaint. J., J., Ch.

Christianson, Burke, concur. J. To the Nuessle, extent that the foregoing opinion holds that the district court acted within jurisdiction his issuing injune- I I tional order on account of which the relator complains, concur. am not able, with all however, is said in agree the opinion. I think the relator has not with complied requirements statute which he is attempting bring contest, so writ he seeks should be denied. wholly It seems to me, reading article 23, chapter 11, the Political Code, 1070-1089, Laws Comp. light §§ sec- preceding

213 advan- to take in order that elections, of with contests tions dealing do desires to who article “any of this person” of the provisions tage to for the seat a claimant either be show himself to must first so same to the entitled elected and been declared the contestee has or must thereto, to the contestee’s his challenge if he sustains of said article machinery to set the otherwise entitled himself show conform in all other in addition, respects He must, 23 motion. individual the the article. Unless he does of to the requirements the aid of the can invoke proper ho seeks to challenge whose election the annoy- Godwin to save himself did, as the court, respondent that will result from an abortive ance and probable prejudice the make not for only otherwise would it contest. To hold possible but for other however in that district person, elector particular A “a his to contest.” hundred motives, malicious or corrupt bring a hundred different each forth different contests by “persons,” setting be and when notices brought, different grounds, might particular must to the contestee answer thereof were served pursuant § of all the contained having under pain allegations pursuant § him. And so taken with to all respect in the notices admitted 23. article the provisions house the each Constitution,

I under fully agree § returns and is the sole of the election assembly judge legislative house, neither nor the members, its own and that qualifications in each house sepa- two houses can vested power together, abridge of its a final decision as to make rately qualifications houses of legislature, members. .But article is the act of both made down lays And this law thus governor. approved When those cases. rules to followed certain contest be with the certain rights privi- rules contestant has complied not those he does have If rules are with those leges. complied need can there be not so what If rights privileges. it? or not Whether or what virtue can there be article; thus exer- accorded and contestant who seeks to enjoy privileges to do so, judicial question. cise the thus afforded entitled rights be a contestant. He to be relator Here, purports purports He 23. seeks enjoy to article pursuant proceeding privileges exercise the without com- that article rights given by plying its requirements. This he cannot do.

(cid:127) The district court considered arid made the relator showing this the held —and relator he himself contends—that was attempting under article As I read proceed order, on account which the relator complains and which he seeks to it set does aside, more than him from nothing enjoin under the proceeding of that article. It does not him or else from prohibit anyone gather- such information as ing see fit they may gather elec- touching tion of Mr. Godwin. It does not him enjoin else from anyone *16 such affidavits procuring as wish to they may procure, taking- such statements as bo able they to obtain or from may doing anything see fit to do they may. so do not long they purport act under color and authority of article 23. It does not to enjoin the relator from purport proceeding with a contest proper in a nor from manner, proper matter presenting any pertinent to- Mr. Godwin’s election or to relator’s thereof to challenge the legis- lative assembly. I., concurs the views expressed by Nuessle, J.

Morris, No. 6452.]

[File GEORGE B. CUMMINGS, Alfreda and Alfred Haugen, Schmitz, v. OF

Appellants, CITY MINOT, Municipal Corporation; Ward County, W. J. Municipal Corporation; Flannigan, State Commissioner of the Highway State North Dakota; St. Minneapolis, Paul and Sault Ste. Marie Com Railway a Corporation, pany, Respondents.

(271 421.) W.N.