State ex rel. Schafer v. Gussner

Decision Date17 September 1958
Docket NumberNo. 7755,7755
Citation92 N.W.2d 65
PartiesSTATE of North Dakota ex rel. Harold SCHAFER, Relator and Respondent, v. W. S. GUSSNER, E. A. Killie, K. L. Zenner, L. T. Havig, J. E. Slatta, R. G. Arveson, K. L. Rue, M. F. Peterson, and Earl Abrahamson, Constituting the Board of Directors and Executive Secretary of the North Dakota High School Activities Association, and T. E. Simle, W. S. Gussner and Hamilton G. Vasey, Superintendents of the Bismarck, Jamestown and Fargo Schools respectively, Defendants and Appellants.
CourtNorth Dakota Supreme Court

Syllabus by the Court

1. Judicial power vested in the courts of North Dakota, extends only to the determination of actual controversies, properly before the court, and does not authorize the court to give advisory opinions on moot questions or abstract principles.

Hjellum, Weiss, Nerison & Ottmar, Jamestown, and L. T. Sproul, Valley City, for appellants.

Strutz, Jansonius & Fleck, Bismarck, for respondent.


The relator in this action, with the consent of the Attorney General, petitioned the district court on May 23, 1957, for a writ of prohibition to restrain the defendants from enforcing the ruling they had made declaring high school boys who had participated in a DeMolay basketball tournament in Bismarck, on April 25, 26, and 27, 1957, ineligible for participation in their track, tennis or golf games in the spring of 1957. The application was supported by the relator's affidavit. The district court on that application forthwith issued an alternative writ of prohibition temporarily restraining defendants from enforcing such ruling and directing them to show cause why the temporary order should not be made permanent. The court set a hearing on the matter for June 18, 1957.

Upon that hearing the court ordered judgment that a peremptory writ of prohibition issue. The appellants took this appeal from that judgment.

It is admitted that before the final hearing held on June 25, 1957, the boy involved had, in obedience to the alternative writ, been allowed to participate in all high school spring sports. The matter in issue, therefore, had become moot. Those of the boys who had been victorious in those games had not been presented their awards. The right to receive awards is not an issue in this case. The relator did obtain the object which he sought, namely, that the boys be allowed to play during the spring of 1957.

Neither party moved for a dismissal of the case. The appellants, however, contend that there...

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7 cases
  • Gosbee v. Bendish
    • United States
    • North Dakota Supreme Court
    • February 23, 1994
    ...Wahpeton Pub. Sch. Dist. No. 37 v. North Dakota Educ. Ass'n, 166 N.W.2d 389, 393 (N.D.1969), reh'g denied; State ex rel. Schafer v. Gussner et al., 92 N.W.2d 65, 66 (N.D.1958); Hart v. Bye, 86 N.W.2d 635, 637 (N.D.1957), reh'g denied; Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672, 676 ......
  • Wahpeton Public School Dist. No. 37 v. North Dakota Ed. Ass'n
    • United States
    • North Dakota Supreme Court
    • March 19, 1969
    ...such question unnecessary and leaves no actual controversy to be determined. Hart v. Bye, 86 N.W.2d 635 (N.D.1957); State ex rel. Schafer v. Gussner, 92 N.W.2d 65 (N.D.1958); Lockwood v. Baird, 59 N.D. 713, 231 N.W. 851 (1930). The parties both concede that the issue which was raised by the......
  • Gasser v. Dorgan, 9391
    • United States
    • North Dakota Supreme Court
    • December 19, 1977
    ...However, no such future situation is now before us, and, therefore, this court cannot now determine the issues raised. State v. Gussner, 92 N.W.2d 65 (N.D.1958). The First National Bank has complied with the subpoena duces tecum, and it would be of no avail for this court to affirm or rever......
  • Peoples State Bank of Velva v. State Bank of Towner, 9335
    • United States
    • North Dakota Supreme Court
    • October 3, 1977
    ...74, 78 (N.D.1971); Wahpeton Public School District v. North Dakota Education Association, 166 N.W.2d 389, 393 (N.D.1969); State v. Gussner, 92 N.W.2d 65, 66 (N.D.1958); Hart v. Bye, 86 N.W.2d 635, 637 (N.D.1957); Brace v. Steele County, 77 N.D. 276, 42 N.W.2d 672, 676 We conclude that the t......
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