State ex rel. Shafer v. Dist. Court of Third Judicial Dist. in & for Ransom Cnty.

• Decision Date: 25 July 1923
• Citation: 194 N.W. 745,49 N.D. 1127
• Parties: STATE ex rel. SHAFER, Atty. Gen., et al. v. DISTRICT COURT OF THIRD JUDICIAL DISTRICT IN AND FOR RANSOM COUNTY et al.
• Court: North Dakota Supreme Court

49 N.D. 1127

194 N.W. 745

STATE ex rel.SHAFER, Atty. Gen., et al.

v.DISTRICT COURT OF THIRD JUDICIAL DISTRICT IN AND FOR RANSOM COUNTY et al.

Supreme Court of North Dakota.

July 25, 1923.

Syllabus by the Court.

The power of the Supreme Court, under section 86 of the Constitution, to exercise superintending control over inferior courts, is not affected by the fact that the district court was acting within its jurisdiction.

Sections 10731-10734, Comp. Laws 1913, are held to provide an exclusive procedure governing motions to dismiss indictments, and when indictments are erroneously dismissed upon motion, the further proceedings must be as contemplated in the statute.

Application for supervisory writ by the State, on relation of Geo. F. Shafer, Attorney General, and another, against the District Court of the Third Judicial District in and for Ransom County, and the Honorable Geo. M. McKenna, Judge. Writ denied.Geo. F. Shafer, Atty. Gen., H. F. Horner, State's Atty., of Fargo, and Geo. A. Bangs, Sp. Asst. Atty. Gen., for relators.

Burke & Burdick and Barnett & Richardson, all of Fargo, Wolfe & Schneller, of Wahpeton, Pierce, Tenneson, Cupler & Stambaugh, of Fargo, and W. S. Lauder, of Wahpeton, for respondent.

BIRDZELL, J.

The Attorney General has presented to this court an application for the issuance of a supervisory writ directed to the district court of the Third judicial district and to the Honorable Geo. M. McKenna, judge, which shall require the respondent to vacate certain orders setting aside certain indictments. After service of notice of the motion for the issuance of the writ, a hearing was had. Upon the hearing the defendant objected to the jurisdiction of this court and argued orally in support of the objections filed. This court subsequently ordered additional arguments on the following questions:

(1) “Were the orders of the trial court erroneous?”

(2) “If erroneous, has this court the power to rectify the error and reinstate the prosecutions, in view of the fact that the defendants were discharged and bail exonerated?”

The respondent has certified to the transcript of the proceedings below, which, including the original records and indictments, constitutes his return.

From the verified application, the transcript of proceedings certified by the respondent as a part of the return and from the exhibits, the following facts appear: On May 2, 1922, a grand jury was convened in Cass county, and from that time until the 18th of May regular sessions were held and certain investigations conducted. Among the matters investigated was the criminal responsibility, if any, of various individuals for the failure of the Scandinavian American Bank of Fargo. The sessions were attended by the state's attorney of Cass county, by the Attorney General, a regular assistant attorney general, and a special assistant attorney general. During the sessions some 43 witnesses appeared before the grand jury, and on the 16th and 17th days of May, 35 indictments were voted and returned against 12 defendants. The indictments involved in this proceeding charge certain crimes against the defendants in connection with the operation of the Scandinavian American Bank, and upon each is indorsed the names of witnesses examined; the number varying for the different indictments from 10 to 21. Subsequently the place of trial of the actions was changed from Cass county to Ransom county, and on March 6, 1923, motions to quash the indictments were heard before the respondent herein. Numerous grounds in support of the motion were urged, among them the following: That the Attorney General and his assistant were permitted to be present during the proceedings of the grand jury in violation of section 10666 of the Complied Laws of 1913; that the special assistant was permitted to be present; that the special assistant was not duly qualified as a special assistant, not having received his appointmentand qualified under it; that the evidence of a large number of witnesses covered a variety of crimes, and the evidence was received while the grand jury was investigating under the general head of Scandinavian American Bank cases; that such evidence was received en masse against all the defendants; that the grand jury did not vote indictments against any defendants until the evidence had all been received; that the names of all the witnesses examined before the grand jury were not indorsed upon each one of the indictments; that the names of 14 witnesses do not appear on any of the indictments returned in the Scandinavian American Bank cases; that, according to the minutes of the grand jury, the Attorney General was sworn as a witness in connection with the purported refusal of one defendant, F. W. Cathro, to appear as a witness before the grand jury, and his name does not appear as a witness upon any indictment; and upon other grounds not necessary to mention here. The respondent at the hearing of the motion took certain evidence with reference to the grand jury proceedings and thereafter granted the defendants' motion to quash. The order entered in each instance sets aside the indictment and does not direct any further proceedings nor hold the defendants subject to further proceedings, as the court is authorized to do under sections 10732 and 10733, C. L. 1913.

[1] At the outset of this controversy, the respondent herein objects to the issuance of any supervisory writ which will require further proceedings in the criminal cases in which orders setting aside the indictments were made, on the ground that this court has jurisdiction neither of the subject-matter, nor of the person of the respondent, and that, irrespective of the power of the court to assume jurisdiction, a proper case for the exercise thereof is not made upon the face of the motion and of the application.

The application is one which is clearly addressed to the superintending jurisdiction of this court as the same is expressed in section 86 of the Constitution. The section reads:

“The Supreme Court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.”

The two branches of jurisdiction conferred by this section, as well as that of the original jurisdiction conferred in the following section, have heretofore been sufficiently discussed and outlined in the adjudications of this court that there is no occasion now to attempt restatement of the principles that control generally in determining jurisdictional questions. State v. Nelson County, 1 N. D. 88, 45 N. W. 38, 8 L. R. A. 283, 26 Am. St. Rep. 609;State v. Archibald, 5 N. D. 539, 66 N. W. 234;State v. District Court (N. D.) 186 N. W. 381.

In the last case cited, this court, in an exhaustive opinion by Mr. Justice Christianson, reviewed the various decisions in this state and in Wisconsin, South Dakota, and Montana, whose Constitutions are quite similar in this respect to our own, and came to the conclusion that, by section 86 of the Constitution, this court is vested with a general superintending control over inferior courts, which not only enables it but requires it, in proper cases, to control the course of litigation so as to prevent miscarriage of justice, especially in cases where there is no appeal or where the remedy by way of appeal is inadequate. The power expressed in the Constitution is unlimited, save as its exercise may be regulated and limited by statute. The only statute that has been passed in the whole period the Constitution has been in force, which bears directly upon the jurisdiction of superintending control (chapter 118 of the Laws of 1891; section 7339, C. L. 1913), in no way limits or restricts the power. On the contrary it seems to place the entire responsibility for the proper exercise of superintending jurisdiction in the court, for it says (section 7339):

“And in its superintending control over inferior courts it may issue such original and remedial writs as are necessary to the proper exercise of such jurisdiction.”

It is for the court, then to determine when a proper case is presented for the exercise of its superintending control.

Is the power of the court in any way affected by the fact that the district court was acting within its jurisdiction? We are clearly of the opinion that it is not. In the case of State v. District Court, 186 N. W. 381, it was not suggested that the district court did not have jurisdiction to grant the restraining order which this court, in the exercise of its superintending control, set aside, nor does it appear that the action of this court was in any way influenced by the consideration as to whether or not the district court had jurisdiction to do what it did. And in Wisconsin, where the precedents under a Constitution like ours are more numerous than elsewhere, it is held that the power of superintending control is not restrained or suspended by the fact that the court whose actions are to be reviewed has acted within its jurisdiction and has exercised judicial power. See State ex rel. Umbreit v. Helms, 136 Wis. 432-439, 118 N. W. 158. Indeed, it is difficult to comprehend the existence of an efficient power of superintending control if the power must always stop short of an interference when it is ascertained that the inferior tribunal was acting within the scope of its jurisdiction. How would it be possible,with the powers so limited, to “restrain excesses,” “quicken neglects,” and “prevent miscarriages of justice,” if all of them may be practiced with impunity within the range of the tribunal's jurisdiction?

Closely allied to the foregoing contention is the further proposition advanced on behalf of the respondent that the power of superintending control cannot be exercised by the court, for the reason that there is nothing before the...