
    STATE OF NORTH DAKOTA ex rel. LYMAN N. MILLER v. C. W. BURNHAM, as Auditor of Foster County, North Dakota.
    (127 N. W. 504.)
    Opinion filed June 24, 1910.
    
    Appeal from District Court, Foster county; Burke, J.
    Petition by Lyman N. Miller praying that a writ of mandamus be issued ordering and directing the defendant, C. W. Burnham, as county auditor of Foster county, to file in his office appellant’s petition. From an order denying the petition, petitioner appeals.
    Affirmed.
    
      Lyman N. Miller, for appellant.
    
      Andrew Miller, Attorney General, and O. L. Young, Assistant Attorney General, for respondent.
   Per Curiam.

This appeal is heard at this time by stipulation of parties and consent of this court. The question involved is whether a petition to place the name of the relator as a candidate for nomination for states attorney upon the ballot to be used at the primary election to be held June 29, 1910, should have been filed and such name printed upon the ballot by the county auditor of Foster county. The petitioner mailed his petition addressed to the county auditor at Carrington by registered letter at McHenry, Foster county, North Dakota, on the 27th day of May, 1910, with the request that it be filed. It should have reached the auditor’s office on the 28th day of May in due course of mail, but his return and the findings of the trial court show that it was received by him on Sunday, the 29th day of May. Monday, the 30th, was the last day on which such petitions could be presented to the county auditor, but that day was a legal holiday, being Memorial day, and the county auditor refused to treat the petition as though presented and filed prior to the 29th day of May, 1910, which was the 29th day prior to the primary. The statute provides that “every candidate for a county or district office shall not more than forty days nor less than thirty days, and before 4 o’clock p. m. of the thirtieth day prior to any primary election, present to the county auditor a petition giving his name, postoffice address,” etc.

The district court held that the act of the county auditor in refusing to receive and’ file the petition was legal. No new questions are involved in this appeal. The law of the case is covered by the opinion of this court in State ex rel. Anderson v. Falley, 9 N. D. 464, 83 N. W. 913.

The judgment of the District Court is affirmed.  