State ex rel. Erickson v. Burr

• Decision Date: 06 November 1907
• Citation: 113 N.W. 705,16 N.D. 581
• Court: North Dakota Supreme Court

113 N.W. 705

16 N.D. 581

STATE OF NORTH DAKOTA EX REL. HENRY ERICKSON v. A. G. BURR

Supreme Court of North Dakota

November 6, 1907

Application by the state, on the relation of Henry Erickson for a writ of quo warranto against A. G. Burr.

Writ granted.

Writ issued.

Edward Engerud and A. M. Christianson, for plaintiff.

Scott Rex, A. E. Coger and Purcell & Divet, for defendant.

OPINION

MORGAN, C. J.

This is an application by a private relator for leave to file an information in the nature of quo warranto against the respondent, A. G. Burr, who is charged with unlawfully acting as judge of the district court of the Eighth judicial district. An order to show cause was issued by this court on August 10, 1907, why such leave should not be granted, and on the return day thereof the relator and the defendant appeared and arguments were duly presented in favor of the right necessity, and duty of this court to grant such leave and in opposition thereto.

The facts leading up to the application are as follows: On March 23, 1907, chapter 161 (page 255) of the Laws of 1907 was duly approved by the governor, which was an act passed with an emergency clause defining the boundaries of the Ninth judicial district. On July 2, 1907, the governor of the state appointed the respondent judge of the district court of said district, who took the oath of office and entered upon the discharge of the duties of the office at once. On behalf of the relator, it is contended that the appointment was in contravention of the provisions of said law, and consequently illegal, null, and void. The respondent claims that his appointment was pursuant to such law, and therefore valid. In order to properly dispose of these contentions, it will be necessary to state the provisions of the law under which said appointment was made. Section 1 enumerates the counties of which each of said districts shall be composed, and prescribes that the Ninth district shall consist of the counties of Bottineau, McHenry and Pierce. Section 2 is as follows: "All actions brought and now pending in the counties of Bottineau, McHenry and Pierce shall be continued in and tried in the Ninth judicial district. The court on its own motion shall direct and authorize said actions to be entitled in the Ninth judicial district, and any judgments rendered thereon shall be in full force and effect in said district." Section 3 provides for the holding of terms of the district court in each of said districts; and further provides as follows: "Any terms of court now called by the presiding judges of the Second and Eighth judicial district shall be duly held unless continued by the judge of the Ninth judicial district for cause." Section 4 is as follows: "There shall be chosen a judge of the district court for the Ninth judicial district at the general election to be held in November, 1908, and thereafter as provided by law." Section 5: "Until the election and qualification of the judge of the Ninth judicial district as herein provided for, all of the territory comprehended in said Ninth judicial district shall be and remain a part of the judicial district to which it belongs under existing laws." Section 6 repeals all acts or parts of acts in conflict with the act in question. Section 7 is as follows: "An emergency exists in this that the population and judicial business in the Second and Eighth judicial districts of the state have grown so large that the judges of said districts cannot give proper attention thereto, therefore this act shall take effect from and after its passage and approval." On March 23, 1907, chapter 159 (page 254) of the Laws of 1907 was approved by the governor of the state. This law was an amendment of section 468 of the Revised Codes of 1905, and provided that the state shall be divided into ten judicial districts, and that terms of court should be held in each district as provided by law, and that a judge of the district court shall be elected in each of said districts, whose term of office shall be four years from the first Monday in January next succeeding his election and until his successor is elected and qualified. No emergency clause was enacted with this act. Hence it did not go into effect until July 1st following its approval.

The respondent contends: (1) That this court should not take jurisdiction and grant the writ, for the reason that the facts do not bring it within the contemplation of section 87, article 4, of the constitution; (2) that sections 4 and 5 of the law under which the appointment was made are unconstitutional, for the reason that the subject of their provisions are not expressed in the title of the act; (3) that said law remains a complete and valid law without sections 4 and 5, and is authority for the immediate appointment of a judge for the district; (4) that it was the intent of the legislative assembly that a judge should be appointed on July 1st, even if sections 4 and 5 be not unconstitutional. To these questions we will now endeavor to apply legal principles for their correct interpretation, mindful of the grave, important, and far-reaching results of our decision.

At the hearing the jurisdiction of this court to entertain original jurisdiction of this proceeding was not seriously denied, but in a written brief subsequently filed it is ably contended that leave to apply for a quo warranto writ should be denied, for the reason that the facts do not bring the application within the purview of section 87, article 4, of the constitution. That section is as follows: "It [Supreme Court] shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall have authority to hear and determine the same." If the attorney general, ex officio, had consented that this relator might apply for this writ, no serious question could be raised in opposition to granting such private relator leave to institute the proceedings. The attorney general having refused to give his consent to the application on behalf of a private relator, a different question is presented, that has not hitherto been presented to this court under parallel facts. The relator bases his right to file an information in the nature of quo warranto upon facts stated in his preliminary affidavit, substantially as follows: That he is a party to several actions now pending in the courts of Pierce and McHenry counties, and is a resident and large taxpayer of McHenry county, and that the respondent as judge threatens to assume jurisdiction on the trial of said causes, and that his acts in relation to said causes will be null and void, and will result in damage to him and multiplicity of suits, and that the sovereignty of the state is affected. The fact that the attorney general refuses to apply for the writ may have great weight with the Supreme Court in determining whether it will assume jurisdiction; but the fact of such refusal of itself will not be given controlling effect when considered in connection with the facts on which the application is based. The writ may be granted when he refuses to apply. It is ultimately for the court to determine whether jurisdiction should be assumed. The recommendation or action of the attorney general, who is the representative of the state in all matters of a legal nature, should always be given grave consideration, but his action will not alone be the guide whether the court should exercise its jurisdiction. The writ is not demandable as a matter of right in any case by a private relator, but is issued as a matter of discretion, after weighing all the facts together with the attitude of the attorney general in reference to the particular case under consideration. The general rule is that this court will take jurisdiction in matters of great public concern--matters affecting the sovereignty of the state. "The Supreme Court shall have and exercise appellate jurisdiction only, except when otherwise specially provided by law or the constitution. The Supreme Court has power in the exercise of its original jurisdiction to issue writs of habeas corpus, mandamus, quo warranto, certiorari and injunction. * * * Provided that said court shall exercise the said original jurisdiction only in habeas corpus cases and in such cases of strictly public concern as involve questions affecting the sovereign rights of the state or its franchises or privileges." Section 6751, Rev. Codes 1905.

In State v. Nelson County, 1 N.D. 88, 45 N.W. 33, 8 L. R A. 283, 26 Am. St. Rep. 609, this court said: "When the information makes out a prima facie case, the writ will issue only in cases of public juris, and those affecting the sovereignty of the state, its franchises and prerogatives, or the liberties of the people. In such cases the court will judge for itself whether the wrong complained of is one which demands the interposition of this court." In State v. Archibald, 5 N.D. 359, 66 N.W. 234, this court approved of the following rule: "But it would be straining and distorting the notion of prerogative jurisdiction to apply it to every case of personal, corporate or local right where a prerogative writ happens to afford an appropriate remedy. To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote, peculiar, perhaps, to some subdivision of the state, but affecting the state at large in some of its prerogatives, raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character, this court judging of the contingency in each case for itself." In that case this court...