State ex rel. Jacobson v. Dist. Court of Ward Cnty., 6523.

• Decision Date: 21 February 1938
• Docket Number: No. 6523.,6523.
• Citation: 68 N.D. 211,277 N.W. 843
• Parties: STATE ex rel. JACOBSON et al. v. DISTRICT COURT OF WARD COUNTY, FIFTH JUDICIAL DIST., et al.
• Court: North Dakota Supreme Court

68 N.D. 211

277 N.W. 843

STATE ex rel.JACOBSON et al.

v.DISTRICT COURT OF WARD COUNTY, FIFTH JUDICIAL DIST., et al.

No. 6523.

Supreme Court of North Dakota.

Feb. 21, 1938.

Syllabus by the Court.

1. Sections 86 and 87 of the State Constitution vest in the Supreme Court: (1) Appellate jurisdiction; (2) a general superintending control over all inferior courts; (3) an original prerogative jurisdiction; and (4) the power to issue such original and remedial writs as may be necessary for the proper exercise of the appellate, superintending, and original jurisdictions so vested in the Supreme Court.

2. The power of the Supreme Court to exercise general superintending control over all inferior courts is separate and distinct from its power to exercise appellate and original prerogative jurisdictions, and applies as well to criminal as to civil actions and proceedings.

3. The power of general superintending control over all inferior courts was granted to insure the harmonious working of the judicial system of the state to meet emergencies, and enables and requires the Supreme Court in a proper case to control the course of judicial proceedings and litigation so as to prevent injustice in cases where there is no adequate remedy by appeal or otherwise.

4. When an application is made to the Supreme Court invoking the power of superintending control over inferior courts and it appears that the case is one in which the power may be exercised properly, it is for the court to determine whether the ends of justice require that the power should be exercised.

5. The power of general superintending control over inferior courts was vested in the Supreme Court to assure a corrective remedy where an inferior court refuses to act within its jurisdiction, acts injudiciously or erroneously within its jurisdiction, or acts beyond its jurisdiction, to the serious prejudice of any citizen, and where there is no adequate remedy for the review and correction of such erroneous and prejudicial acts.

6. The power of general superintending control over all inferior courts is not affected by the fact that the action complained of was one within the jurisdiction of the inferior court. It may be invoked to correct erroneous action within the court's jurisdiction resulting in serious prejudice to a citizen and for which no adequate remedy is provided.

7. The power of superintending control will not be exercised upon light occasions. It will be exercised only when there is no other adequate remedy and where the exigency is of such nature as obviously to justify the interposition of the general superintending power of the court.

8. A grand jury is discharged by operation of law upon the final adjournment of the term of the district court for which it was impaneled and cannot be continued beyond the final adjournment of such term.

9. Where by order of the judge a grand jury is continued in session after the final adjournment of the term for which it was impaneled, and continues its investigations and presents indictments against citizens and accusations against public officers, a person against whom an indictment or accusation is presented and against whom such investigations are being made may invoke the power of general superintending control of the Supreme Court, and the erroneous action of the inferior court may be corrected by appropriate writ.

Application by the State of North Dakota, on the relation of Bertel Jacobson and another, for a supervisory writ directed to the District Court of Ward County in the Fifth Judicial District and the Honorable John C. Lowe, District Judge thereof, to require that a grand jury be discharged.

Writ granted.

E. R. Sinkler and G. O. Brekke, both of Minot, for relators.

Alvin C. Strutz, Atty. Gen., and Milton K. Higgins, Asst. Atty. Gen., for respondents.

PER CURIAM.

The relators have applied for a supervisory writ to be directed to the District Court of Ward County in the Fifth Judicial District and to the Hon. John C. Lowe, one of the judges of the Fifth Judicial District, which writ shall require that a certain grand jury heretofore called for a special term appointed to be held in October, 1937, in said District Court of Ward County, be forthwith discharged and that the said District Court and the judge thereof be prohibited from holding said grand jury in session.

It appears from the petition of the relators that they are taxpayers and county commissioners of said Ward County, and that they have been charged in certain accusationsreturned by the said grand jury with misconduct in office, and that the grand jury is conducting investigations affecting the relators, and that relators are threatened with further accusations being returned by the said grand jury.

The petition alleges in substance that on the 4th day of October, 1937, the Hon. John C. Lowe, one of the judges of the Fifth Judicial District, called a special term of the District Court in and for said Ward County; that on the 13th day of October, 1937, he ordered the jury board of Ward County to call twenty-three persons to act as a grand jury at said special term of the District Court, and ordered the said grand jury to report for duty on October 19, 1937; that the said grand jury met at said time and continued in session until October 27, 1937, and that on said day the said special term of the District Court ended or was adjourned; that the said Hon. John C. Lowe, judge of the said District Court, made and filed his order convening the said grand jury again on November 1, 1937, being the first day of the regular November term of said District Court; that the order so convening said grand jury for said November term states that “the Grand Jury, now in session for the Special October, 1937, Term of the District Court, be and the same is hereby continued for the November, 1937 term of the District Court as provided by law”; that the said grand jury did convene on November 1, 1937, and remained in session until November 10, 1937; that a petit jury was in session at said November, 1937, term, and that on November 10, 1937, the said petit jury was discharged from further service during said term and ordered to report for duty at the regular December term; that the said Hon. John C. Lowe, who was acting as the presiding judge at said November term, made an order dated November 10, 1937, to the effect that the said grand jury was excused from further attendance during the November, 1937, term of said court, and “that they be and are hereby ordered to return for Grand Jury service for the December term of the District Court on December 6, 1937”; that during the said grand jury session at the said regular November term of the said District Court the said grand jury returned three separate accusations of misconduct against the relators; that on December 6, 1937, the same being the day appointed by law for the commencement of the regular December term of the District Court, the said grand jury again convened and remained in session from said December 6, 1937, to the 18th day of December, 1937, both inclusive, and that during said time no order was filed by the court continuing said grand jury for a further period after the ten days had expired; that an order was filed on December 18, 1937, wherein it was ordered “that the Grand Jury now in session at the general December, 1937, term of the District Court be and the same is hereby ordered to return and act as the Grand Jury for the Special December, 1937 Term of the District Court to convene on the 16th day of December, 1937”; that accusations were returned against the relators during the December term of court charging them with misconduct in office in regard to the purchase of rubber tires for a farm tractor that had theretofore been purchased on advertised bids; that on the 18th day of December, 1937, the Hon. John C. Lowe, judge of said District Court, made a further order wherein it was ordered: “That said Grand Jury be excused from further attendance on this Special December, 1937 Term of the District Court, and are ordered to return to act as a Grand Jury at the general January term on January 17, 1938”; that the said grand jury is threatening to file further accusations against the said relators.

A hearing was ordered upon the petition. The respondents made return from which it appears that the grand jury was called and has remained in session substantially as averred in the petition.

It is the contention of the relators that the grand jury that was called for the special term in October, 1937, became functus officio upon the expiration of the term for which it was called and that the orders of the trial judge continuing such jury in session up to and during the December term of said District Court were contrary to law; and that it was beyond the power of the court to continue the grand jury in session beyond the final adjournment of the term at which it had been impaneled, and that consequently this court should issue its supervisory writ directing that the grand jury be discharged and prohibiting the grand jury from continuing in session as such.

The respondents contend (1) that the matter is not one within the jurisdiction of the Supreme Court, but that, if it is, the jurisdiction ought not to be exercised; (2) that the District Court had authority to continue the grand jury in session beyond the expiration of the term of the District Court at which it was impaneled; and that it could continue the jury in session indefinitely by the entry of an order within each ten-day period; and (3) that in any event the grand jury is a grand jury de facto and its acts not subject to collateral attack, and hence no writ should issue.

These propositions will be considered in the order stated.

The first contention of the respondents is based upon section 7339, C.L.1913, which reads as follows: “The supreme court shall have and exercise appellate jurisdiction only, except when otherwise...