State Ex Rel. Schmeding v. District Court of the Sixth Judicial District , 67 N.D. 196 ( 1937 )

To the extent that the foregoing opinion holds that the district court acted within his jurisdiction in issuing the injunctional order on account of which the relator complains, I concur. I am not able, however, to agree with all that is said in the opinion. I think the relator has not complied with the requirements of the statute under which he is attempting to bring this contest, and so the writ he seeks should be wholly denied.

It seems to me, reading article 23, chapter 11, of the Political Code, §§ 1070-1089, Comp. Laws 1913, in the light of the preceding sections dealing with contests of elections, that in order to take advantage of the provisions of this article "any person" who desires to do so must first show himself either to be a claimant for the seat to which the contestee has been declared elected and entitled to the same if he sustains his challenge to the contestee's right thereto, or must show himself otherwise entitled to set the machinery of said article 23 in motion. He must, in addition, in all other respects conform to the requirements of the article. Unless he does the individual whose election he seeks to challenge can invoke the aid of the proper court, as the respondent Godwin did, to save himself from the annoyance and the probable prejudice that will result from an abortive contest. To hold otherwise would make it possible not only for any elector in that particular district but for any other person, however malicious or corrupt his motives, to bring "a contest." A hundred different contests by a hundred different "persons," each setting forth different particular grounds, might be brought, and when notices thereof were served pursuant to § 1070, the contestee must answer pursuant to § 1071 under pain of having all the allegations contained in the notices taken as admitted by him. And so with respect to all the other provisions of article 23.

I fully agree that under the Constitution, § 47, each house of the legislative assembly is the sole judge of the election returns and of the qualifications of its own members, and that neither house, nor the two houses together, can abridge the power vested in each house separately to make a final decision as to the qualifications of any of its members. But article 23 is the act of both houses of the legislature, approved by the governor. And this law thus made lays down the rules to be followed in certain legislative contest cases. When those rules are complied with the contestant has certain rights and privileges. If those rules are not complied with he does not have those rights and privileges. If this be not so what need can there be for the article; or what virtue can there be in it? Whether or not a contestant who seeks to enjoy the privileges thus accorded and exercise the rights thus afforded is entitled to do so, is a judicial question.

Here, the relator purports to be a contestant. He purports to be proceeding under and pursuant to article 23. He seeks to enjoy the privileges and exercise the rights given by that article without complying with its requirements. This he cannot do.

The district court considered the showing made by the relator and held — and this the relator himself contends — that he was attempting to proceed under article 23. As I read the order, on account of which the relator complains and which he seeks to set aside, it does nothing more than enjoin him from proceeding under the provisions of that article. It does not prohibit him or anyone else from gathering such information as they may see fit to gather touching the election of Mr. Godwin. It does not enjoin him or anyone else from procuring such affidavits as they may wish to procure, from taking such statements as they may be able to obtain or from doing anything they may see fit to do so long as they do not purport to act under color and by authority of the provisions of article 23. It does not purport to enjoin the relator from proceeding with a proper contest in a proper manner, nor from presenting any matter pertinent to Mr. Godwin's election or to relator's challenge thereof to the legislative assembly.

MORRIS, J., concurs in the views expressed by NUESSLE, J.