State ex rel. Sathre v. Moodie

• Decision Date: 02 February 1935
• Docket Number: No. 6330.,6330.
• Citation: 258 N.W. 558,65 N.D. 340
• Parties: STATE ex rel. SATHRE, Atty. Gen., v. MOODIE et al.
• Court: North Dakota Supreme Court

65 N.D. 340

258 N.W. 558

STATE ex rel.

SATHRE, Atty. Gen.,

v.MOODIE et al.

No. 6330.

Supreme Court of North Dakota.

Feb. 2, 1935.

Syllabus by the Court.

1. Section 87 of the Constitution conferring original jurisdiction upon the Supreme Court to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and injunction expressly provides that: “No jury trial shall be allowed in said supreme court, but in proper cases questions of fact may be sent by said court to the district court for trial.”

2. Under the pleadings in this proceeding there is an issue of fact involved properly triable to a jury.

3. Where a question of fact properly triable to a jury arises in an original proceeding in quo warranto in the Supreme Court, and it appears that conditions exist which make it practically impossible to secure a trial jury, and where the parties to the proceeding waive a trial by jury and ask the Supreme Court to try the question itself, and it appears that the ends of justice so require, the court will hear and determine such question.

4. Under section 73 of the Constitution, no person is qualified for the office of Governor of North Dakota who has not resided within the state for the five years next preceding his election.

5. The term “resided,” in section 73 of the Constitution, means having had a residence, as defined by section 14, Comp. Laws 1913.

6. Every person has in law a residence where such person remains when not called elsewhere for labor or special or temporary purpose, and to which he returns in seasons of repose. Such person can have but one residence which he cannot lose until another is gained. Leaving his place of residence is not an abandonment unless he establishes another, and a new residence can be established only by the union of act and intent.

7. Where a person having legal residence in North Dakota removes to Minnesota, and there lives with his family in the same apartment for a period of approximately twenty months, and during such time registers as a voter as required by the laws of Minnesota, votes at the primary and general elections, and exercises the rights of a citizen of Minnesota, it is held, for reasons stated in the opinion, that he acquires a legal residence in Minnesota, notwithstanding his intention to return to North Dakota at some indefinite time in the future.

8. Section 72 of the Constitution, providing that the powers and duties of the office of Governor devolve upon the Lieutenant Governor in case of the disability of the Governor, does not differentiate between a disability existing before election and one occurring after election.

9. In event of the disqualification of the Governor elect, the election and qualification of the Lieutenant Governor supplies a successor to the former Governor or Acting Governor, and the powers and duties of the office devolve upon the Lieutenant Governor for the remainder of the term for which the disqualified Governor elect was chosen.

Original application in the Supreme Court for writ of quo warranto by the State, on the relation of P. O. Sathre, Attorney General, against Thomas H. Moodie and another.

Writ granted.

P. O. Sathre, Atty. Gen., and Francis Murphy, Sp. Asst. Atty. Gen., for relator.

M. W. Murphy and M. A. Hildreth, both of Fargo, John Moses, of Hazen, John F. Sullivan, of Mandan, W. D. Lynch, of La Moure, and C. J. Murphy, of Grand Forks, for respondent Moodie.

Alvin C. Strutz, of Bismarck, for respondent Welford.

BURKE, Chief Justice.

[1] This is an original proceeding in quo warranto instituted in this court upon the application of the Attorney General. It involves the title to the office of Governor. In the information it is alleged that the respondent Thomas H. Moodie received a majority of the votes cast at the last general election for the office of Governor; that a certificate of election was duly issued to him, and that he has qualified and entered upon the discharge of his duties as Governor; and that the respondent, Walter Welford, at the same election, was elected Lieutenant Governor, and that he has duly qualified as such officer. It is further alleged in the information that the said respondent, Thomas H. Moodie, did not possess the qualifications prescribed by section 73 of the State Constitution, and that he is ineligible to the office of Governor in this: (1) That he is not a citizen of the United States; and (2) that he had not “resided five years next preceding the election within the state.”

The respondent Moodie filed a return wherein he denied the averments of the information and asserted that he was and is a citizen of the United States, and that he had resided within North Dakota the five years next preceding said general election, and, hence, possesses the qualifications which the Constitution prescribes for the incumbent of the office of Governor.

The pleadings in the case presented questions of fact properly triable to a jury. This court, therefore, entered an order that:

“Whereas, in the above entitled action there are presented issues of fact which are properly triable to a jury,

And whereas, the provision of the constitution (North Dakota Constitution, § 87) conferring original jurisdiction upon the supreme court expressly provides that ‘no jury shall be allowed in the Supreme Court but in proper cases questions of fact may be sent by said court to the district court for trial.’ * * *

It is ordered:

1. That the issues of fact in this case be sent to the district court of Ramsey County for trial; that such issues of fact be tried to a jury, unless the parties expressly waive trial by jury, and the trial judge accepts such waiver and determines to try the case without a jury.

2. That the Hon. C. W. Buttz, one of the judges of the Second Judicial District of North Dakota, whose chambers are located in said Ramsey County, be and he hereby is designated as the judge to preside at the trial of said action.”

On January 21, 1935, Judge Buttz made the following report to this court: “January 7, 1935, Supreme Court made order in this case that issues of fact be sent District Court Ramsey County for trial designating me judge to preside at trial. I was notified of entry of order on same day. Shortly thereafter was informed that Attorney General might file application for change of place of trial. On same day I communicated with him requesting if such application were made it be presented promptly so that case might be tried as expeditiously as possible. In order to cause as little inconvenience as possible and to expedite disposition of case I arranged for hearing the application for change of place of trial and conference with counsel for respective parties before January 14th. They were unable to agree. At that time counsel for both sides present at Fargo and application for change of place of trial was submitted by attorney general. Conformable to usual practice gave the opposing side opportunity until Saturday night submit rebutting affidavits. At that time had not the slightest doubt that it would be possible to obtain fair and impartial jury either in Ramsey county or in any other county to which case might be transferred, if a change of place of trial were ordered. Both sides and myself have honestly tried to expedite trial. Not a moment was wasted. Careful consideration has led me to conclusion that county chosen by Supreme Court, namely Ramsey, is probably most impartial county and, consequently, I denied application for change of venue as it appeared to me that in all circumstances there is greater probability of obtaining a fair and impartial jury in Ramsey County than in any other county in state. However recently addresses have been broadcast over radio purporting to discuss not only all facts in case but procedure adopted. In many instances in such manner as to tend to discredit decision that may ultimately be reached. In similar instances discussions have appeared in press. According to press House of Representatives have discussed and passed resolutions looking toward impeachment of Governor Moodie for same reasons and grounds that are involved in this action. According to statements in press communications have been sent to members of legislative assembly from practically every section of state expressing opinions on very issues involved in this case. In short, there has been developed such intense feeling dissension and turmoil as to render it difficult if not impossible to obtain fair and impartial jury in any county of state. In my opinion there is greatest likelihood that no jury would agree upon verdict; great probability is that disagreement will result. In short, it is my deliberate judgment that the conditions which have been brought about in this state the past week makes it highly probable that an attempt to try case to a jury would be wholly futile and merely involve needless expense and tend to prolong present state of uncertainty and turmoil. Therefore, am of opinion that ends of justice will be best served if case be returned to Supreme Court for final disposition.”

Immediately after this report had been received by this court, counsel for the respective parties were informed and directed to appear. They did so appear. The report was duly considered, and in open court counsel for the respective parties announced that they fully acquiesced in the report and that they waived trial by jury and requested the Supreme Court to try all issues in the case, both of law and of fact. The question, therefore, presented itself whether in the circumstances this court should try and determine the issues of fact in the case.

[2] The primary function of this court is to exercise appellate jurisdiction; that is, to review on appeal the decisions rendered in the trial courts. Section 86 of the State Constitution expressly so provides. It says that, except as otherwise provided in the Constitution, the Supreme Court shall have appellate jurisdiction only. In addition to...