Opinion
No. 22799. En Banc.
January 30, 1931.
Application filed in the supreme court September 23, 1930, for a writ of prohibition to prevent the secretary of state from issuing and certifying notice of a special election. Denied.
Vanderveer, Beardslee Bassett, T.M. Royce, and John F. Dore, for relator.
The Attorney General, E.W. Anderson, Assistant, and Harry A. Rhodes, for respondent.
Caldwell Lycette, amicus curiae.
This was an original application in this court, seeking a writ prohibiting the secretary of state from issuing and certifying to the various county auditors throughout the state, notice to call an election at the general election on November 4, 1930, to fill the vacancy on the supreme court caused by the death of the Honorable Walter M. French. This case is a companion case to that of State ex rel. Rummens v. Superior Court, ante p. 520, 295 P. 730, just decided, and was heard at the same time. At the time of the hearing, or soon thereafter, an order was entered denying the relief prayed for, and reciting that a formal opinion would follow later.
If, as held in the case of State ex rel. Rummens v. Superior Court, supra, Rem. Comp. Stat., § 11044, operates as a call for an election, it is immaterial whether the secretary of state should give any notice, because it would be the duty of the county auditors, when the vacancy occurs, to give notice of the election to fill such vacancy. Upon oral argument, the assistant attorney general stated that, if the matter became material, he desired to withdraw his demurrer and deny that the secretary of state was intending to do what it was charged that he would do.
We think this case is sufficiently covered by what is said in the other case, and that the relator was not entitled to the prohibitory order which he sought.