State ex rel. Linde v. Robinson

• Decision Date: 09 December 1916
• Parties: STATE ex rel. LINDE, Atty. Gen., v. ROBINSON et al.
• Court: North Dakota Supreme Court

35 N.D. 410

160 N.W. 512

STATE ex rel.

LINDE, Atty. Gen.,

v.ROBINSON et al.

Supreme Court of North Dakota.

Dec. 9, 1916.

Syllabus by the Court.

The prerogative jurisdiction of the Supreme Court will be exercised only in cases wherein the questions involved are publici juris and the sovereignty of the state or its franchises or prerogatives or the liberties of its people are affected.

A controversy between a majority of the present members of the Supreme Court and certain successful candidates at the last general election who claim the right to occupy such offices and exercise the duties thereof, presented to this court by the petition of the Attorney General, is a matter of such public interest and involves the sovereign rights of the state and its people in a degree sufficient to require the exercise of such original jurisdiction.

A judge of the district court who is called in to sit in the place of a judge of the Supreme Court becomes a justice of the Supreme Court for all purposes in the case in which he is so called, and is invested with the same power and authority conferred upon a justice of the Supreme Court.

Application by the State of North Dakota, on the relation of Henry J. Linde, Attorney General, for an original writ against James E. Robinson and others. Respondents ordered to show cause why writ should not be issued.

See, also, 160 N. W. 514.

PER CURIAM.

The Attorney General presented to this court his verified petition in due form wherein it is asserted that the three above named respondents, Robinson, Grace, and Birdzell, were candidates, and received a majority of all votes cast at the general election held in November, 1916, for the offices of justices of the Supreme Court of the state of North Dakota, and consequently were chosen and elected as justices of the Supreme Court to succeed in term Chief Justice C. J. Fisk and Associate Justices E. T. Burke and E. B. Goss, whose terms commenced on the first Monday in January, 1911, and will expire January 2, 1917; that the above-named respondents, Robinson, Grace, and Birdzell, assert that their terms of office commence on December 4, 1916, and that they threaten and are about to intrude themselves into and, without warrant of law, assume the offices of justices of the Supreme Court; that they have declared their intention to so do, among other ways, in a written communication to the present Chief Justice Fisk; and that they will, unless restrained from so doing, intrude themselves into and attempt to occupy said offices and perform the duties thereof, as well as enter into possession of the offices in the state capitol now occupied as chambers by Chief Justice Fisk and Associate Justices Burke and Goss, respectively.

The petition also sets forth at great length the important causes (including criminal cases) now pending before said court, the uncertainty which will exist respecting the validity of the judgments and orders of the court, and in general the condition of chaos which will exist under the circumstances, unless some orderly determination be made of the rights of the respective contenders. The Attorney General therefore asks that this court assume original jurisdiction and determine the matters thus presented.

Upon the presentation of this petition to the court it became immediately apparent that the present Chief Justice C. J. Fisk and Associate Justices Burke and Goss were disqualified, as it involved directly their tenure of office and their right to occupy their respective positions and receive compensation for their services during the month of December, 1916. Said three members of this court therefore announced their disqualification. The two remaining justices, Bruce and Christianson, thereupon, under the provisions of section 100 of the state Constitution, called three district judges, to wit, W. L. Nuessle, judge of the Sixth judicial district, J. M. Hanley, judge of the Twelfth judicial district, and Chas. A. Pollock, judge of the Third judicial district, to sit with said Justices Bruce and Christianson upon the hearing of said application. The said district judges so called thereafter met at the courtrooms of the court in the state capitol with Associate Justices Bruce and Christianson, and the court was organized, consisting of A. A. Bruce, Acting Chief Justice, Associate Justice A. M. Christianson, and District Judges Nuessle, Hanley, and Pollock.

[1][2][3] The first question presented to this court as thus organized is whether this court should exercise its original jurisdiction. The original jurisdiction of this court, which is granted by section 87 of the state Constitution, is reserved for the use of the state itself when it appears to be necessary to vindicateor protect its prerogatives or franchises or the liberties of its people.

“The state uses it to punish or prevent wrongs to itself or to the whole people; the state is always the plaintiff and the only plaintiff, whether the action be brought by the Attorney General, or against his consent on the relation of a private individual under the permission and direction of the court.” State v. Frear, 148 Wis. 456, 500, 134 N. W. 686, L. R. A. 1915B, 569, 606, Ann. Cas. 1913A, 1147;State v. Taylor, 156 N. W. 561.

In State v. Burr, 16 N. D. 581, 113 N. W. 705, this court held that this jurisdiction must be exercised upon the application of a private relator, even though the Attorney General refuses to consent to the initiation of the proceeding, where a person was appointed by the Governor as judge of the district court under a law which provided that such judge should be elected. As already stated, the Attorney General refused to institute proceedings, but this court permitted the private relator to file an application and assumed original jurisdiction, and upon a hearing held the appointment to be invalid and ousted the alleged incumbent. In a companion case, State v. Ely, 16 N. D. 569, 113 N. W. 711, 14 L. R. A. (N. S.) 638, this court held the acts of the then incumbent to be valid on the ground that he was a de facto judge of the district court. If, under these circumstances, the court was required to assume original jurisdiction of the controversy there presented, it is self-evident that in this case, where the proceeding is instituted by the chief law officer of the state, and involves, the incumbency of the offices of a majority of the members of this court, a far stronger case is presented and far greater reasons exist for assuming original jurisdiction. Consequently four members of the court as now constituted, namely, Associate Justices Bruce and Christianson, and District Judges Nuessle and Pollock, are of the opinion that this court ought to exercise its original jurisdiction herein, and issue an order citing the respondents to show cause why the original writ of this court should not be issued as prayed for.

Judge Hanley concurs herein, but bases his concurrence on the ground that in this controversy between two contending courts a tribunal should be constituted and offered to the contending parties to settle their differences, to the end that no unseemly controversy be had between the judges as to who has the right to hold the offices involved during the month of December, 1916.

As it appears to the...