160 N.W. 514 (N.D. 1916), State ex rel. Linde v. Robinson

Citation:160 N.W. 514, 35 N.D. 417
Opinion Judge:PER CURIAM:
Party Name:STATE OF NORTH DAKOTA EX REL. HENRY J. LINDE, Attorney General, Relator, v. JAMES E. ROBINSON, R. H. Grace, L. E. Birdzell, Chas. J. Fisk, E. B. Goss, and E. T. Burke
Case Date:December 11, 1916
Court:Supreme Court of North Dakota

Page 514

160 N.W. 514 (N.D. 1916)

35 N.D. 417

STATE OF NORTH DAKOTA EX REL. HENRY J. LINDE, Attorney General, Relator,

v.

JAMES E. ROBINSON, R. H. Grace, L. E. Birdzell, Chas. J. Fisk, E. B. Goss, and E. T. Burke

Supreme Court of North Dakota

December 11, 1916

OPINION

Page 515

[35 N.D. 419] PER CURIAM:

The above-entitled matter was initiated by an order to show cause issued by the following named persons, constituting the supreme court of the state; viz.; Andrew A. Bruce, as Acting Chief Justice, together with Associate Justice A. M. Christianson, and District Judges W. L. Nuessle, James M. Hanley, and Chas. A. Pollock. At the time of the issuing the order to show cause the question of the right of the supreme court, as thus constituted, to sit, was considered, and upon that question an opinion was written, signed, and filed by the five judges above named. State ex rel. Linde v. Robinson, ante, 410, 160 N.W. 512. The order to show cause thus issued, in substance, required all the respondents above named to appear before the supreme court on Thursday, December 7th, 1916, and present their respective claims with reference to their tenure of office of justices of the supreme court, between the first Monday in December, 1916, and the first Monday of January, 1917. Thereafter Justices Bruce and Christianson, entertaining doubts as to the propriety of their further sitting and deciding upon the merits involved in the proceeding, asked to be relieved from acting, whereupon the remaining members of the court as thus constituted, and without any suggestion from Justice Bruce and Christianson, called to complete the complement of the court W. C. Crawford, judge of the district court of the tenth district and K. E. Leighton, judge of the district court of the eighth district. Upon the return day the court last above named assembled, and, with the exception of Judge James M. Hanley, appeared in the court room of said court as constituting a majority of the supreme court of the state of North Dakota then organized and ready to conduct the business of the same. There were also present John P. French, the marshal of said court, and R. D. Hoskins, the clerk thereof. Court was opened in due form. Upon this matter being called for hearing, Messrs. W. C. Lemke and William Langer appeared specially, as counsel for Messrs. Robinson, Grace, and Birdzell, whom for convenience hereafter in this opinion we will designate as judges elect; James E. Robinson and R. H. Grace appearing also in person; L. E. Birdzell not appearing. The attorney general, H. J. Linde, appeared for the plaintiff, stating the reasons why he had brought the action; and Judges Fisk, Goss, and Burke appeared generally, each for himself respectively, making no objection to the jurisdiction [35 N.D. 420] of the court as constituted, each filing his return to the writ and claiming, in substance, that his term of office does not expire until the first Monday in January, 1917. Upon the other hand, counsel for the judges elect, appearing specially, moved that the order to show cause be discharged, for the reason that the court as now constituted

Page 516

was not a court and had no jurisdiction in the matter whatsoever. At this juncture the court was compelled to pass upon the question of jurisdiction. Being of the opinion that there is no question whatsoever but that this court, as now constituted, is a regularly organized and existing court under the Constitution, sitting as the supreme tribunal thereof, we conclude, and so hold, that the motion must be denied. This we do independently of the decision heretofore rendered in this same proceeding, and to which reference has been made. State ex rel. Linde v. Robinson, supra. We, however, wish it to be understood that we have carefully considered that decision and unanimously concur therein, save and except as to the reasoning upon which Judge Hanley bases his concurrence. Reference to that opinion will fully answer the jurisdictional questions involved herein, without the necessity of embodying the same in these conclusions. It may be appropriate, however, for us to add that we cannot agree with the contention of the judges elect that there is no tribunal in this state which can settle the questions here in dispute. Carried to its logical conclusion, their contention would bring us into that singularly unfortunate state of confusion where one body of men in office claimed the right to sit, and another, not having possession, asserted the same right. The matter would then have to be determined by purely the right of possession, or a recourse to physical force, where the members of the highest judicial branch of the government must settle the disputed question by the arbitrament of arms. Such a humiliating spectacle in civilized society ought not to exist. Clearly, no such lapse of power could have been contemplated by the people of the state of North Dakota when they adopted our Constitution containing its clear provisions with reference to calling in judges of the district court to sit when the judges of the supreme court were for any reason disqualified. This court, as now constituted, is as much the supreme court of the state of North Dakota, as though the members thereof had been elected to that position by the people themselves, for the simple reason that the people in adopting the Constitution said that [35 N.D. 421] the tribunal as now created should be organized in the form in which it is in cases where the duly elected and acting supreme court judges were disqualified.

Upon the whole record, therefore, the sole and only question remaining for decision is whether the term of office of the judges elect commences on the first Monday in December, 1916, or, the first Monday in January, 1917. This calls for an interpretation of certain sections of our Constitution and a construction of the whole thereof in connection with appropriate legislation made prior and subsequent to the creation of our state, and its admission into the Union. Before taking up a discussion of the several sections of the Constitution, it may be appropriate to refer to certain canons of construction, which are so thoroughly settled as a part of the law of the land that their simple statement will be sufficient to show the elementary character they possess. "The...

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