The Bismarck Tribune Newspaper, December 6, 1934, Page 3

©. to @ survey of local lawyers, many of @ whom have been digging in the law IN GOVERNO At least four different decisions are e clearly possible if and when the effort to prevent Thomas H. Moodie from becoming books since the matter first was made public. They ‘ere impelled by curiosity, all frankly admit—and some curious legal conclusions have been the result. : ‘The four possible decisions, pre- sented in the order of their apparent. Probability, are: 1, That Moodie will be installed as governor. 2. That Moodie will be ruled in- eligible and Walter Welford, lieuten- ant governor-elect, will take over the duties of the office. 3. That the election will be de- clared null and void and that Ole Olson will continue as acting gov- ernor. 4. That the election will be de- clared null and void and a new elec- tion called to name a governor. Before examining the line of reasoning behind each of these con- clusions it is interesting to note cer- tain points of agreement in each legal discussiot n. ‘The first of these is that Moodie ‘apparently did vote at an election in Minneapolis in 1930. He has not de- nied it and is not expected to do so. The second i; that the constitu- ,tion of the state does require resi- ‘dence in it for five years before elec- tion to the office of governor. As to the exact meaning 0° this constitu- tional clause there is disagreement, the question being whether any five years will do or whether it must be the five years immediately preceding | the election. The weight of opinion is that it must be the five years im- mediately preceding the election, which presumably would rule Moodie out were it not for certain other fac- tors. It is these, apparently, upon which the defense will rest its case. Favors Will of People First and most important among these is that the supreme court doubtless will approach the case with @ view to making the will of the people, as expressed in ‘Moodie's elec- tion, constitutional if it can possibly do 50. ‘The background for this presump- tion is found in the established rule that it must find legislation enacted by the people or their representatives, constitutional if ther is any way to do it. On this basis, the legal approach to the case will be in Moodie's favor. A second consideration is that of the time in which the matter was advanced. Moodie was elected after previously having gone through a Primary ag the result of which his} name was presented to the of the state by its officials in charge af elections as th. of one elegible to receive the c‘fice. There may be & real question as to whether the advanceinent o° an alleged ineligi- as E PipRe ie git Z ges8! E2 é | s i 8 § B E ornor are relatively | obtain those ‘Welford’s claim to the Job would be | that he was elected lMeutenant-gov- upon the completion of his term. It also would be contended that, since he was second tc Moodie in the list of officials-elect, he would succeed to Moodie’s rights in the event the governor-elect were declared ineli- 1 les the lay mind can well eae It is # veritable whirligig of “ifs” and “buts.” Olson Claim Looks Fair Olson’s claim to the office would be based on the fact that, since the, SEE FOUR POSSIBLE RULINGS MOODIE TO WIN FIRST ROUND oe ea 8 RSHIP CASE ** eee election of Moodie vas null and void and no one was elected governor, the people had received no opportunity to make their will effective and that he would retain the office until some one were elected and qualified. There is quite a lot of legal opinion for this premise. A corollary to it is that, since he is acting governor only during the disqualification of William Langer as the result of the latter’s conviction on a criminal charge, Langer would return to the office in the event he is ranted a new trial by the federal district court of ap- Peals. The possibility tuat a new election would be called rests upon the fact violence to the constitution, the court might create a brand new precedent by suggesting to the acting governor that a new election be called to de- termine who should be governor, thus throwing the matter back in the laps of the people. Such a move would be unique in the annals of American states but ig not impossible. Cases similar to that here are rare. One lawyer alleges that he has found a Nebraska case in which a governor-elect was ruled out because | he had not lived in the state two| years, the constitutional require- ment there, in the late 70's when the matter was presented. In Indiana and some other states, cases similar to this one but not ex- actly in point re fairly numerous and the gist of these ig claimed to favor Moodie'’s contention. Cites Oliver County Case Meanwhile, election contests near- er home are being searched for local Precedent and a case which may re- ceive wide attention is that of Jennes vs Clark, appealed to the supreme ‘court from Oliver county in 1911. In this case, one Iva O. Jennes, superin- tendent of schools, challenged the right of 8. H. Clark to take over the office of county superintendent of schools on the ground that he did not have a teacher's certificate of the highest county grade and hence was ineligible to serve even though he had been elected. The district court granted Clark the office, but the supreme court re- the decisi Clark could not did not meet the It ruled that Plaintiff should continue to hold the office. It is in- teresting to note that W. L. Nuessle, now a judge of the supreme court, and J. A. Hyland, were attorneys for Clark. case, of course, there was no succes- sion provided, s0 it gives no hint of what might be done with Welford’s claim. The significant thing about of|it, however, is the declaration that lected. The significant thing about this case is that all five justices of the supreme court wrote E2 >ez HE i E . $ <3 Late the plaintifis z I i g i i 253 ts Hy ir E i i ad SE E fi Hi : 5 5 s i if 8 Eeve i am QP E aRe2 fie 5 3 < 8 E g g g Es since certificat sued by the secretary. state's chief election mere nullities and that, in the eyes of the law an election hag not been 14.” Refer to Traill Battle In this case, frequent reference is made by all the judges to a fight in- volving the removal of the Trail] county seat from Caledonia to Hills- boro. In that case the sufficiency of the petitions was attacked after Hills- boro had won the election but the court held that the effort to obtain @ legal remedy came too late; that the people already had spoken and the ecurt would not upset their decision. Whatever the decision in the Moodie case two things apparently are clear, One is that Moodie will win the first round since the expres- sion in Bronson’s opinion in the re- call case that the action was wrongly directed against the state canvassing board probably will hold here. Thus, Moodie may ly expect to get & certificate of election showing the People’s will. : g Decision as to his right to hold the! THE BISMARCK TRIBUNE. THURSDAY, DECEMBER 6, 1934 lenged directly, will rest with the five members of the supreme court and they are charged with making the will of the people effective if they can do it,under the law and the con- stitution, They and they alone will make the judgment, since it is im- probabie that the supreme court of the United States would give much time to a matter involving a purely state controversy. A 9 the winter months, Birds Asked by Steen Pointing to the possibility of a severe winter, M. O. Steen, Bismarck, secretary of the state division of the Izaak Walton League and project di- rector of the U. 8. Bureau of biologi- cal survey, Thursday appealed to North Dakota sportsmen and conser- vation clubs to perfect organization themselves under trying conditions, severe winter might destroy the pro- gress made during many years of in- tensive stocking of upland game. A general food survey of the state convinced Steen the birds could sur- vive the winter if weather conditions are “at all favorable” but that a severe Steen said, there is the possibility a t governorship, if and when he Is chal- Vinter Care for Game for the care of upland birds during| winter, particularly deep snows, would ‘cause heavy losses. MOUNTAIN DISAPPEARS Tegucigalpa, Honduras—An entire Though the birds can care for) He declared it was imperative that|Mountain disappeared during earth- | sportsmen and conservationists of |quakes which badly damaged a large | every community perfect an organiza- | tea of the interior this week, an of- ion now that will act swiftly and/ficial communique said. Disrupted efficiently should such action become |COmmunication lines prevented an necessary. Thomas Wedéers, an 18th century Englishman, had the longest nose of accurate estimate of property loss or casualties, eer ad President Andrew Johnson was & history. 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