State, Relation of Olson v. Langer

• Citation: 256 N.W. 377,65 N.D. 68
• Decision Date: 19 September 1934
• Docket Number: 6288
• Court: North Dakota Supreme Court

256 N.W. 377

65 N.D. 68

STATE OF NORTH DAKOTA ON THE RELATION OF OLE H. OLSON, Petitioner, v. WILLIAM LANGER, Respondent

No. 6288

Supreme Court of North Dakota

September 19, 1934

Original proceeding by the state on the relation of Ole H Olson for a writ of quo warranto requiring the respondent to show by what right he continues to exercise the powers and duties of the office of governor.

Writ granted.

H G. Fuller, for petitioner.

P O. Sathre, Attorney General, J. A. Heder, Assistant Attorney General (H. A. Bronson and Francis Murphy of counsel) for respondent.

Usher L. Burdick, amicus curiae.

Burke, J. Burr, Ch. J., and Nuessle, J., and McKenna, Dist. J., concur. Christianson, J., disqualified, did not participate; Hon. Geo. M. McKenna, Judge of Third Judicial District, sitting in his stead. Moellring, J. (dissenting).

OPINION

BURKE

The petitioner, invoking the original jurisdiction of this court, petitions for a writ of quo warranto requiring the respondent to show by what right he continues to exercise the powers and duties of the office of governor of this state. Such petition is based upon the contention that the respondent has been convicted of a felony. All the pleadings, briefs, arguments and oral statements in court show that the determinative facts are not in dispute.

On November 4, 1932, the respondent was duly elected governor of this state for the term of two years, commencing in January, 1933. At the same time the petitioner was duly elected to the office of lieutenant governor for a similar term and the respondent and the petitioner qualified respectively for the office to which he was elected. On May 10, 1934, indictment was returned in the United States District Court for the District of North Dakota against the respondent, William Langer and others, charging the said defendants had wilfully and unlawfully and feloniously combined, conspired, confederated and agreed together to defraud the United States of America by corruptly administering certain Acts of Congress, to-wit:

The Act of Congress approved July 21, 1932, entitled "An Act to relieve destitution, to broaden the lending powers of the Reconstruction Finance Corporation, and to create employment by providing for and expediting a public-works program," commonly known as the "Emergency Relief and Construction Act of 1932." The Act of Congress approved May 12, 1933, entitled "An Act to provide for co-operation by the Federal Government with the several States and Territories and the District of Columbia in relieving the hardship and suffering caused by unemployment, and for other purposes," commonly known as the "Federal Emergency Relief Act of 1933." The Act of Congress of June 16, 1933, entitled "An Act to encourage National Recovery, to foster fair competition, and to provide for the construction of certain useful public works, and for other purposes," commonly known as the "National Industrial Recovery Act."

The statutory offense of which respondent was convicted is defined in § 5540, U.S. Rev. St., § 37, Criminal Code, § 88, USCA title 18, which reads: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than $ 10,000, or imprisoned not more than two years, or both."

The respondent was convicted under this statute on the 16th day of June, 1934 and on June 29, 1934 was sentenced to imprisonment for one year and six months in the Federal penitentiary and fined $ 10,000. Judgment of conviction and sentence were duly entered in the records of the Federal Court in and for the district of North Dakota. The execution of said judgment and sentence has been stayed by said court pending appeal to the United States Circuit Court of Appeals of the Eighth Circuit and defendant is at liberty under supersedeas bond, but the verdict of guilty and the judgment of conviction as entered have not been vacated or set aside.

The petitioner filed his official oath and made demand upon the respondent to turn the office of governor over to him. This demand was refused. Thereupon he applied to the attorney general to institute a proceeding in quo warranto to determine who was entitled to the office. On the refusal of the attorney general to do this petitioner began the instant proceeding. His contention is that because of the conviction in the federal court, the respondent is under such constitutional disability that he is disqualified to act as governor and that the powers and duties of the office devolve upon the lieutenant governor while such disability continues.

On the 12th day of July, 1934, the parties were present in this court by counsel and the respondent at that time filed a motion to quash, a demurrer and a return.

The motion to quash states: "Respondent moves to quash said application or petition upon the ground that such application or petition seeks to oust the respondent as Governor of this state from his office and from exercising the duties thereof by and through the exercise of the original jurisdiction of this court and in place of and by superseding the sole original and exclusive jurisdiction of the legislative assembly, granted by the constitution, to oust the respondent from the office of Governor and from performing the duties thereof, by impeachment." Paragraph 3 of the motion states the same ground in a little different manner. Paragraph 4 states: "Respondent moves to quash said application or petition upon the ground that the same seeks to oust the respondent from the office of Governor and from performing the duties thereof for the reason of an existing disqualification and lack of eligibility to hold the office of Governor resulting from the commission of a federal crime, under constitutional and statutory provisions, to wit: because not now a qualified elector and because of loss of civil rights. That the exercise of original and, in effect, exclusive and sole jurisdiction by this court upon such subject matter would supersede and exclude the sole, original and exclusive jurisdiction possessed by the legislative assembly under the constitution, by impeachment, to find or not find, to adjudge or not adjudge, that the respondent is under disability to hold the office of Governor, . . ." Paragraph 5 states the same facts and alleges that an assumption of jurisdiction by this court "would constitute an encroachment of judicial functions in another field and department upon a subject matter expressly reserved and granted to the legislative assembly. . . ." Paragraph 6 states: "Respondent moves to quash said application or petition for the reason that the respondent as Governor and Chief Executive of this state has called a special and extraordinary session of the legislative assembly to convene at the State Capitol at Bismarck . . . to consider and act upon the questions of impeachment, the removal and the qualifications of the respondent as Governor of this state under the constitution and the laws of this state, and that said legislative assembly will possess, as it does possess, under the constitution and laws of this state, the sole, original and exclusive jurisdiction to inquire, to investigate, and to impeach the respondent. . . ." Paragraph 7 states: "Respondent moves to quash said application or petition upon the ground that the respondent was and is a citizen of the United States; that he was and is a citizen of this state . . .; that said application seeks to oust this respondent from the office of Governor . . . by reason of said respondent being convicted and sentenced in Federal Court, after trial by jury, for the commission of a felony against the laws of the United States and the disabilities or disqualifications to hold office resulting therefrom; that such application, in seeking the exercise of the original jurisdiction of this court through quo warranto, attempts to secure the finding by this court that respondent because so convicted and sentenced in federal court for a felony has created a vacancy in the office of Governor, is disqualified as an elector, has lost his civil rights and is under disability to hold the office of Governor and perform the duties thereof; and all of this without any trial by the legislative assembly upon the subject matter or without any trial, finding or verdict by any jury of this state that respondent has violated any law of the state of North Dakota; that, as shown by said application, appeal has been duly taken from the judgment and sentence in federal court and respondent asserts that he is not guilty of the offense as charged and found; that the conspiracy for which respondent was convicted in federal court, under federal statutes, is a felony, but under the laws of the state of North Dakota, is only a misdemeanor. That . . . under federal constitution and federal laws, respondent after such conviction, sentence and appeal, still remains and is a citizen of the United States, fully possessed of all of his civil rights, including his right to vote as an elector and remains qualified to hold office, or to be a candidate for federal congress or United States Senate; that any attempt to so exercise jurisdiction of this court as sought, would deny respondent the right of trial by jury for violation of state law, would abridge the privileges and immunities of the respondent as a citizen of the United States, would deprive him of his property and rights therein, without due process of law and would deny to him the equal protection of the laws, all contrary to the 5th and 14th amendments to the constitution of the United...