The Bismarck Tribune Newspaper, February 4, 1935, Page 2

JUDGES FIND VOTE IN MINNESOTA BAR TO OFMIGE HOLDING Hold Official Acts in Office Va- lids Lieutenant Governor to Fill Out Term The complete opinion of the state Supreme Court in dis- qualifying Governor Thomas H. Moodie and finding Lieu- tenant-Governor Walter Wel- ford his successor in office follows: Burke, Ch.J. proceeding in quo warranto institu- ted in this court upon the applica- tion of the Attorney General. It involves the title to the office of Governor. In the information it is alleged that the respondent, Thomas This is an original H. Moodie, received a majority of| the votes cast at the last general election for the office of Governor; that a certificate of election was duly issued to him, and that he has qualified and entered upon the dis- charge of his duties as Governor; and that the respondent. Walter Welford, at the same election, was! elected Lieutenant Governor and that he has duly qualified as such officer. It is further alleged in the information that the said respond- ent, Thomas H. Moodie, did not possess the qualifications prescribed by section 73 of the state constitu- tion and that he is ineligible to the/ office of Governor in this: (1) that} he ts not a citizen of the United! States; and (2) that he had not “re- sided five years next preceding the election within the State.” The respondent Moodie filed a re- turn wherein he denied the ave ment of the information and assei ed that he was and is a citizen of the United States and that he had resided within North Dakota the five years next preceding said gen- eral election, and, hence, possesses the qualifications which the consti- tution prescribes for the incumbent of the office of Governor. Ordered Ramsey Trial ‘The pleadings in the case present- ed questions of fact properly triable to a jury. This court, therefore, entered an order that: “Whereas, in the above entitled ac- tion there are presented issues of fact which are properly triable to a Jury, “And whereas the provision of the constitution (North Dakota Consti- tution, Sec. 87.) conferring original Jurisdiction upon the Supreme Court expressly provides that ‘no jury shall be allowed in the Supreme Court but in proper cases questions of fact may be sent by said court to the district court for trial..." “It is ordered: } “1. That the issues of fact in this, case be sent to the district court of Ramsey county for trial; that| such issues of fact be tried to aj) jury, unless the parties expressly) waive trial by jury, and the trial Judge accepts such waiver and de- termines to try the case without a jury. “2. of the judges of the Second Judicial | District of North Dakota, whose chambers are located in said Ram- sey county, be and he hereby is des-; ignated as the judge to preside at the trial of said action.” On January 21, 1935, Judge Buttz made the following report to this| court: | Ask Change of Venue \ “January 7, 1935, Supreme Court} made order in this case that issues) of fact be sent District Court Ram-| sey county for trial designating me) judge to preside at trial. I was no- tified of entry of order on same day. Shortly thereafter was informed that Attorney General might file applica~ tion for change of place of trial. On same day I communicated with, him requesting if such application were made it be presented promptly so that case might be tried as ex- Peditiously as possible. In order to cause as little inconvenience as pos- sible and to expedite disposition of case I arranged for hearing the ap- Plication for change of place of trial | and conference with counsel for) respective parties before January 14th. They were unable to agree. At that time counsel for both sides Present at Fargo and application for change of place of trial was sub-| mitted by attorney general. Con- formable to usual practice gave the opposing side opportunity until Sat- night submit rebutting affi- davits. At that time had not the slightest doubt that it would be pos- sible to obtain fair and impartial jury either in Ramsey county or in That the Hon. C. W. Buttz, one} > E dhe i FE guegrrs a e i hi THE BISMARCK TRIBUNE, MONDAY, FEBRUARY 4, 1985 Opinion of State Supreme Court Disqualifying Governor Moodie, Naming Welford Success result. In short, it is my deliberate ltt presented questions of law only. judgment that the conditions which |State ex rel Olson v. Langer, have been brought about in this /N. D. + 256, N. W. 377. state the past week make it highly| It seems entirely clear that the probable that an attempt to try to)framers of the constitution did not @ jury would be wholly futile and | intend that the Supreme Court or- merely involve needless expense and |{dinarily should hear witnesses, and tend to prolong present state of un- | Weigh their testimony, and try and certainty and turmoil, ‘Therefore, | determine disputed questions of fact, am of opinion that ends of justice |especially where such questions were will be best served if case be return-|of such nature as to be properly ed to Supreme Court for final dis-|triable to a jury; but it was intend- position.” ed that when an issue of fact prop- Waive Trial by Jury jetly triable to a jury arose in a Immediately after this report had Proceeding in the Supreme Court such been received by this court counsel question should be sent to a dis- for the respective parties were inform- trict court for trial. In short, the ed and directed to appear. They did Procedure adopted in this case was so appear. The report was duly con- iM accord with the intent, spirit and, sidered and in open court counsel Purpose of the constitution. But, in| |for the respective parties announced | View of the existing conditions, (which | jthat they fully acquiesced in the re-/according to the certificate of the |port and that they waived trial by|‘Tial judge arose after this court ijury and requested the Supreme ent the case to the district court Court to try all issues in the case,/for trial) we are agreed that this [both of law and of fact. The ques. | Court not only may but should try tion, therefore, presented itself | he case. whether in the circumstances this| People Confer Power court should try and determine the issues of fact in the case. The primary function of this court is to exercise appellate jurisdiction; that is, to review on appeal the de- cisions rendered in the trial courte. The jurisdiction conferred upon this court by section 87 of the con- stitution is a prerogative jurisdic- tion, “This jurisdiction is not only limited to prerogative writs but is confined to prerogative causes.” At- Section 86 of the state constitution | torney General v. Eau Claire, 37 Wis. jexpressly so provides. It says that|400, 443. The people of North Da- except as otherwise provided in the/kota in their constitution conferred constitution, the Supreme Court shall)this great judicial power upon the have appellate jurisdiction only. In|Supreme Court that it might be used jaddition to the appellate jurisdiction |in their behalf for the assertion of [the constitution grants to the Su-jsovereign rights and to protect and |preme Court a general superintend-| vindicate the prerogatives and fran- [ing control over all inferior courts;!chises of the state and the liberties and it also grants to the Supreme|of the people. This principle was Court original and prerogative jur-| announced in the early history of the isdiction “to issue writs of habeas!state and has been steadfastly ad- corpus, mandamus, quo warranto,|hered to. North Dakota v. Nelson certiorari, injunction and such other |County, 1 N. D. 88; State v. Archi- original and remedial writs as may bald, 5 N. D. 359, 66 N. W. 234; State be necessary to the proper exercise ex rel Linde v. Taylor, 33 N. D. 76, of its jurisdiction” and authorizes!156 N. W. 561. the court to hear and determine the; “The jurisdiction,” said Chief Jus- same. (North Dakota Constitution,'tice Morgan (State v. Fabrick, 17 Section 87.) But the section of the /N. D. 532, 536) “is not’ to be exer- constitution which grants this power|Cised unless the interests of the specifically outlines the procedure ‘State are directly affected. ... The to be employed by the court in car- | matters to be litigated must not only rying it into effect. It says that in|be public! juris, but the sovereignty all original proceedings “no jury trial of the state, or its franchises or pre- shalled be allowed in said Supreme |Togatives, or the liberties of its peo- Court, but in proper cases questions |Ple, must be affected... . There must of fact may be sent by said court be presented matters of such strictly to a district court for trial.” (North!Public concern as involve the sov- jSupreme Court of Michigan that {North Dakota, but in none of those | \similar to that in Section 87 of the | ‘during the entire history of the state Dakota Constitution. Section 87.) Cite Similar Cases Before the North Dakota Consti- tution was adopted, perplexing ques- tions had arisen in other states as regards the right of trial by jury of questions of fact in quo warranto| Proceedings brought directly in the| ‘Supreme Court. In Wisconsin and Kansas it had been found necessary to impanel a jury in the Supreme ‘Court for the purpose of trying ques- tions similar to those involved in this case. State v. Messmore, 14 Wis. 125; State v. Allen, 5 Kan. 124; State v. Foster, 32 Kan. 314. In a quo warranto proceeding brought in the court had referred the case to a cir-! cuit court for trial, the refusal of the lower court to try the case to a jury{ was held to be error and it was said! that it was not within the power of | the Supreme Court to deprive a par- | ty of the right of trial by jury. Peo- Dle v. Doesburg, 16 Mich. 133, The Provisions of the constitutions of Wisconsin, Michigan and Kansas, conferring original jurisdiction upon the Supreme Court were quite sim- ilar to those of the Constitution of constitutions was there a provision; North Dakota constitution:—“no jury trial shall be allowed in sald Supreme | Court, but in proper cases questions of fact may be sent by said court to a district court for trial.” Case Makes History This is the first time in the his- tory of this court that it has been confronted with the trial and de- termination of disputed questions of fact in a quo warranto procecding instituted in this court. In all other quo warranto proceedings that have been instituted directly in this court no questions of fact were presented. And, so far as we can ascertain, there have been presented to this court for determination only two con- troversies involving title to an elec- tive state office. The first case involved the office of State Superintendent of Public Instruction and arose following the General election of 1918. At that election one Minnie J. Nielson re- celved the highest number of votes for that office. A certificate of elec- tion was issued and she duly quali- fied. But the incumbent, N. C. Mc- Donald, refused to turn the office over to her. The Attorney General applied to this court for a writ of mandamus to compel the office to be surrendered to Miss Nielson. The incumbent, McDonald, sought to as- sert, among other defenses, that Miss Nielson did not possess the pre- scribed legal qualifications and that, consequently, he was entitled to con- tinue in office. This court held that the certificate of election issued to Miss Nielson was prima facie evi- dence of title to the office; that such prima facie title could not be defeat- ed in a mandamus proceeding by averments of fact involving the ul- timate title to the office and directed @ writ of mandamus to be issued. Miss Nielson ™ fecorainay Pigoed in possession office. v. McDonald, 41 N. D. 389, 170 N. W. 873. After that decision had been tendered McDonald, the incumbent, made application to the Supreme Court for leave to institute an ay Proceeding in quo warranto in the Supreme Court. The Attorney Gen- eral appeared in opposition to the application, pointed out that the Proceeding involved a trial and de- termination of issues of fact, and contended that the relator should be required to institute action in the nature of quo warranto in the dis- {availing, other appropriate judicial |means will be adopted so that the ;Mohall; that he arrived in Minnea- the 3rd day of April, 1931, at 2545; ereign rights of the state, or its franchises or privileges.” To Punish or Prevent Wrongs “This transcendent jurisdiction,” said Chief Justice Winslow of Wis- consin (State ex rel Bolens v. Frear, 148 Wis. 456) “is a jurisdiction re- served for the use of the state itself when it appears to be necessary to vindicate or protect its prerogatives or franchises, or the liberties of its People; the state uses it to punish or prevent wrongs to itself or to the whole people... .” ‘The governmental power thus re- served by the people for use by the state to protect, preserve and vin- dicate the sovereign rights of the state and of the people may not be thwarted or rendered impotent be- cause circumstances render it dif- ficult or even impossible to pursue the ordinary methods of procedure. And where, as here, it is shown that conditions exist that render the us- ual and ordinary methods of proced- ure inapplicable, inadequate or un- great ends for which the jurisdic- tion was reserved may not be de- feated. Hence, inasmuch as in this) case the usual and ordinary proced- ure was shown to be inadequate and| ineffective, the court decided to try/| and determine all the issues in thej| case, both of law and of fact, directly in this court. Accordingly a trial was had at which evidence was ad- duced. Citizenship Stipulated A written stipulation that Mr./ Moodie is a citizen of the United | States was filed leaving only the) question of his constitutional quali- fication as to residence. { It is conceded that Thomas H.; Moodie sold his newspaper at Mo- hall; that he left Mohall for Min- neapolis, not intending-to return to Polis in August, 1929; that he lived with his wife in Minneapolis until Blaisdell ave.; that he registered as @ voter and voted at the primary in June and at the general election in the fall; that his wife, with his knowledge, also, registered as a vot- er that year. But it is his contention that his residence in Minneapolis Was temporary; that he went to Minneapolis because certain news- Paper organizations in that city had information relating to papers in North Dakota which he, Moodie, might purchase and while waiting for an opportunity to purchase he had temporary employment on the Tribune. Veteran Newspaperman Mr. Moodie is a newspaper man. He practically grew up in a news- Paper office and apparently there was no kind of work about a news- Paper office that he did not know and could not do. He could set type, run a linotype machine, write editorials, political or otherwise. He apparently was a very versatile and industrious man. He worked on newspapers in Minneapolis, St. Paul, Duluth, Virginia, Bemidji, New Or- leans, St. Louis, Langdon, Grand Forks, Fargo, Wahpeton, Ray, Long Beach, San Francisco, Mohall, Will- iston, Minot, cities. any question about the legality vote or his right to cast Terms of Residence Detailed The term “resided,” as used in the constitution, means having had legal residence; that is, a residenct Supreme Court Syllabus sed The syllabus of the court’s decision on the Moodie disquali- ie ala case, in which the five judges of the court concurred, ‘ollows: “The State of the North Dakota on the Relation of P. O. Sathre, Attorney General, Relator vs. Thomas H. Moodie and Walter Welford, Respondents. “1. Section 87 of the Constitution, conferring original jur- isdiction upon the supreme court to issue writs of habeas cor- pus, mandamus, quo warranto, certiorari, and injunction ex- pressly provides that “no jury trial shall be allowed in said su- preme court, but in proper cases questions of fact may be sent by said court to the district court for trial.” “2. \ Under the pleadings in this proceeding there is an issue of fact involved properly triable to a jury. “3. Where a question of fact properly triable to a jury arises in an original proceeding in quo warranto in the supreme court; and it appears that conditions exist which make it prac- tically impossible to secure a trial jury; and where the ‘parties to the proceeding waive a trial by jury and ask the supreme court to try the question itself; and it appears that the ends of justice so require the court will hear and determine such ques- tion. “4, Under Section 78 of the Constitution no person is qual- ified for the office of governor of North Dakota who has not Helle within the state for the five years next preceding his election. “5. The term ‘resided’ in Section 78 of the Constitution, means having had a residence, as defined by Section 14, Com- piled Laws 1913. “6. Every person has in law a residence where such per- son remains when not called elsewhere for labor or special or temporary purpose and to which he returns in seasons of repose. Such person can have but one residence which he can- not lose until another is gained. Leaving his place of residence is not an abandonment unless he establishes another, and a new residence can be established only by the union of act and intent.” Did Intend to Return to State The court observed in its opinion that “we think from the whole record that Mr. Moodie did intend to return to the state of North Dakota sometime. “His testimony, his statements to the witnesses in Min- neapolis and the fact that he did return all indicate an inten- tion to return sometime. “On the witness stand his truthfulness was apparent everyone. He answered all questions without hesitation, when the answers were unfavorable as well as when they were fav- ate s He stated that his plans were indefinite when he left onal. Commenting on Moodie’s voting in Minnesota, the court said, “It is quite apparent from this record that while Mr. Moodie had an intention to return sometime to North Dakota, he had the intent when he registered as a voter in Minneapolis, to cast his vote as he always cast it and that he did not intend to exercise any rights of citizenship in North Dakota while he was in Minnesota but intended to exercise them in Min- nesota. He knew that North Dakota had an absent voter's bal- lot law; but he did not attempt to vote by absent ballot and did not in any way claim any benefit or privilege of citizenship in North Dakota. “As stated in the case of Dickinson vs. Brookline, 181 Mass. at Page 196, 63 NE 333, ‘when you intend the facts to which the law attaches a consequence, you must abide the consequence whether you intend it or not.’” Legal Residence Minnesota “7, Where a person having a legal residence in North Da- kota removes to Minnesota and there lives with his family in the same apartment for a period of approximately 20 months, and during such time registers as a voter as required by the laws of Minnesota, votes at the primary and general elections, and exercises the rights of a citizen of Minnesota, it is held, for reasons stated in the opinion, that he acquires a legal residence in Minnesota, notwithstanding his intention to return to North Dakota at some indefinite time in the future. “8. Section 72 of the Constitution, providing that the powers and duties of. the office of governor devolve upon the lieutenant governor in case of the disability of the governor, does not differentiate between a disability existing before elec- tion and one occurring after election. “9, In event of the disqualification of the governor-elect, the election and qualification of the lieutenant governor supplies a successor to the former governor or acting governor and the powers and duties of the office devolve upon the lieutenant governor for the remainder of the term for which the disqualified | governor-elect was chosen. “Original application in the supreme court for a writ of quo warranto by the state on the relation of P. 0. Sathre, Attorney General. “Granted. “Opinion of the court by Burke, Ch. J. ti “P, O. Sathre, Attorney General, Bismarck, and Francis Murphy, special assistant attorney general, Fargo, for relator. “M. W. Murphy, and M. A, Hildreth, Fargo, John Moses, Hazen, John F. Sullivan, Mandan, W. D. Lynch, LaMoure, and C. J. Murphy, Grand Forks, for Respondent Moodie. “Alvin C. Strutz, Bismarck, for Respondent Welford.” Particular poll or district continue until the right to vote elsewhere is shown, but the shortest absence co- incident with an intention to change the residence defeats the right to vote at the former domicile. Kriets Only One Residence In other words, every person has in law a residence where such per- son remains when not called else- where for labor or other special or. temporary purpose and to which he returns in seasons of repose; that he can have but one residence and the one residence to which he is en- titled he cannot lose until another is gained; that is, leaving his place of residence is not an abandonment unless he establishes another, and a new residence can only be establish- 44 Neb. 82, 62 N. W. 249 and note in 48 Am. St. Rep. 712. The question of residence must be de- peroalned from all oe aoe cire nces surrouns Person, as related to his residence, and the ee ee lived in Walsh county for seven eight years before this election wi held. The contestant showed th Seety A ea or Succession Also Question ‘This proceeding was instituted by the eS ae The = Pn jaelf is q purpose merely 5 ey the title of Mr. Moo- die to the office of Governor but also to determine the question of succes- jaion in case Mr. Moodie is held in- eligible, Accordingly the Attorney General joined Mr. Welford as a party and y. on the first Monday in “| January, 1935, the powers and duties i g t E é 3 ords of Walsh county failed to show| Now, that he had ever declared his inten-/ this tion to become a citizen of this|z, moodle was country or received his final nat-jiite engaged ‘uralization From these facts|ness. He ry therefore will devolve upon the res- pondent Walter Welford and it will thereby and then become his duty to exercise the powers and duties of the office of Governor of North Dakota ..” And the Attorney General's the trial court concluded that a legal Presumption arose that Jarus was not a legal voter and this court said:/anq “It ts a case that rests largely upon presumptions. The alienage being shown, it is presumed to contin until evidence to the contrary shown. Hauenstein v Lyhnam, 1 U. 8. 483, 25 L. Ed. 628. But, when information concluded with the prayer “that the court declare, state and fix the rights, status, and legal re- lations of the said respondent Wal- ter Welford to the office of Governor and for such other-and further relief North Dakota in July, ‘when he sold his newspaper and wrote Published @ beautiful farewell message to its patrons and the citi- it is shown that the ‘party has @ vote in this country, then Presumption disappears, and the posite the law will not presume that a party has committed any unlawful act, Gumm v Hubbard, 97 Mo. 311, 11 8. W. 61.” Vote Cast Legal In that case it was shown Jarus was foreign born and the sumption of law that this condit continued until the cont shown Blaisdell S383 s57E by ts ay eu i Presumption is that his voting Minneapolis was legal. tion of ‘the authorities the law, as stated by id gave (Nelson v Goss, supra) for deter-jdell ave. mining residence is supported by the/When he great weight of authority and it is/in 1931 entirely to cite the au-| Williston, thorities at length. But see Pacific/in his state income Mutual Ins. Co. v Thompkins, 41!“Did you an C. C. A. 488; Tuttle v Wood, 115 Ia.|last year?” he answered 507, 88 N. W. 1056; Hairston v Hair-jresident then.” He also ston, ‘applications for automobile licenses Minnesota while there, giving his EES BE fl ! i | F | f if i etek HU F i It therefore becomes necessary to consider the status of Walter Wel- ford and his legal relation to the office of Governor. The Constitu- tion of the State says, “Sec. T1. The executive power shall be vested in a governor, who shall reside at the seat of govern- ment and shall hold his office for the term of two years and until his successor is elected and duly quali- fied. “Sec. 72. A leutenant governor shall be elected at the same time and for the same term as the governor. In case of the death, impeachment, resignation, failure to qualify, ab- sence front the state, removal from office, or the disability of the gov- ernor, the powers and duties of the office for the residue of the term, or until he shall be acquitted or the disability be removed, shall devolve upon the leutenant governor.” Under Section 71 the governor holds office until “his successor is elected ‘Under Section in 543, 108 A. 8, R. 379; Gaddie v Mann, | place of residence, 2545 Blaisdell ave.,| 5° Minneapol! 147 Fed. 955; Chambers v Prince, “By the use of the word ‘inten- tion’ in the statute it ts clear the legislature did not mean an undefined or undefinable pur- Pose on the part of the voter to re- turn to his former residence at some unknown ti state. We his fe Tor eng, the Course ot ora that ‘Mr. tention’ as used in the statute, wh Teasonably construed in view of the legislative object and the general re on the ae ~ domicile. That ‘® person may live in one voting dis- trict and do business there and at the same time retain a right to vote in another district is undoubtedly EE A a ¥ Henderson, 78 N. Atl. 623, L. R. A. 19185 “The difficulties H. 510. Es 55 < Es 2 cut sidered in its application to vidual cases. In every case of sia, Sat 38 Hf Fe il uf : | B g if i 5 | ll ale i t ith fi if He Hy? i iu ! =f Beek E BE gs fi efgs E i li ee Bes aeedtsteeet ed by the union of act and intent; that is, there must be an actual change of residence, together with| an_intention to make such change. The sole question of fact in the’ case is, did Thomas H. Moodie es- tablish a legal residence in Minne- @polis; that is, was there a union of act and intent to change the resi- dence from Mohall, North Dakota, and establish it in Minneapolis, Minnesota. The act of moving to Minneapolis from Mohall without any intention of returning to Mohall and the living in Minneapolis with his wife at 2545 Blaisdell ave. for a Period of one year and nearly eight Mmonths are conceded, so that the question of fact is narrowed down to Mr. Moodie’s intention. Such questions have been presented | many times in the courts and the law for determining the intention is well settled. Previous Decision Cited intention must be sccompanied by 3 no! one may testify that his intention was to make his home in a certain place if his acts here are of a character to negative his declaration or in- consistent with it, it is clear that the court cannot be governed by his as to intention. t 5 g 5 4 g i 84 E i 8 af y > é Hee AH pn ges F re H RE i it #3 L | 3 F r $ 5. gee gsi i 4 a x i -lentitling one to vote or to hold of. fice in the State of North Dakota. Residence is defined in Section 14, intent. |poses; nor does right to vote at # g i In_the case of Nelson v Gass, 27 N. D, 357, 146 N.W. 537, this court! held: “The place of one’s residence for the purpose of voting is where he has established his home, the place where he is habitually present, and to which, when he departs, he intends to return, and must be de- : < S 2 ; i fs of 5s az Fs 43 ve ae Be. is ae H e is Hes sept a tied 4 (Syllabus, paragraph 9). In the opinion the court said: “A good-faith intent of a voter to ee ue att i gE E 8 ef F PLyS g E z ii j Hi easy § acquired, for voting pur- 3s = a [ o i i el a istfstes 8 ite & F j 3 FF: ‘ rs 8 z & a Pit u F ga x ger pet aF