Youmans v. Hanna

• Decision Date: 15 March 1917
• Citation: 35 N.D. 479,161 N.W. 797
• Parties: YOUMANS v. HANNA et al
• Court: North Dakota Supreme Court

35 N.D. 479

161 N.W. 797

YOUMANS

v.HANNA et al

Supreme Court of North Dakota.

March 15, 1917.

Syllabus by the Court.

A judge of the district court who is called to sit in the place of a justice of the Supreme Court becomes, when he reports for duty and enters upon the discharge of his duties pursuant to such call, for all purposes in the case in which he is so called, a justice of the Supreme Court, and is vested with the same power and authority as though he had been regularly elected and qualified to fill the office of justice of the Supreme Court.

A decision promulgated by district judges so called is the decision of the Supreme Court of North Dakota, and entitled to the same consideration as though it had been promulgated by a like number of regularly elected justices of the Supreme Court.

So far as the public and third persons are concerned, the acts of officers de facto performed by them within the scope of their assumed official authority are generally as valid and binding as if they were the acts of officers de jure. And this rule applies with full force to judicial officers.

For the reasons stated in the opinion, it is held that Justices Fisk, Burke, and Goss were unquestionably de facto justices of the Supreme Court of North Dakota during the month of December, 1916, and consequently their official acts during that time were valid.

When the Supreme Court has entered a final order in a cause brought there on appeal, and the remittitur has been transmitted to, and judgment entered thereon in the court below, the Supreme Court loses jurisdiction to recall the remittitur and reinstate the cause, unless the order directing the issuance of the remittitur was based on fraud or mistake of fact.

Appeal from District Court, Ward County; Kneeshaw, Special Judge.

Motion to vacate an order denying a rehearing. Motion denied.

For former opinion, see 160 N. W. 705.

Robinson, J., dissenting.Arthur Le Sueur, of Ft. Scott, Kan., and James Manahan, of St. Paul, Minn., for the motion. Francis J. Murphy, of Minot, opposed.

COLE, District Judge.

By an opinion of this court filed December 2, 1916, and reported in 160 N. W. 705, this court affirmed the judgment of the trial court. A petition for rehearing was filed on December 22, 1916, and on December 28, 1916, an order was entered denying a rehearing. The remittitur was thereupon transmitted to, and judgment entered thereon in, the district court. On January 2, 1917, the plaintiff filed a motion to vacate the order denying a rehearing. Such motion is based on the following grounds:

“That Judges Fisk, Burke, and Goss participated in the deliberations of the court and in the decision denying the application, and were not judges of this court at said time, their term of office having expired upon the first Monday in December of the year 1916, and the said three persons constituting a majority of those assuming to act as the Supreme Court of this state, and, being without legal right or authority to so act, the order denying the said motion was without authority of law and void.

That the said order amounts, in effect, to a complete denial of justice in the above-entitled action, no fair hearing upon the merits having ever been allowed in this action in this court.”

On the 5th day of January, 1917, this court made the following order:

“Ordered, further, that the said motion of the said Arthur Le Sueur and all matters pertaining thereto be heard before the Supreme Court of this state at the capitol on Tuesday, January 16th, at 10 o'clock a. m.”

On the 16th day of January the court assembled with four judges present, and upon request of counsel for plaintiff and appellant the court adjourned to January 17, 1917, at 10 o'clock a. m., at which time five judges were present; District Judges J. M. Hanley and A. T. Cole sitting by request in the place of Judges Birdzell and Grace, who regarded themselves as disqualified. On said 17th day of January, 1917, arguments on the part of counsel for plaintiff and appellant and counsel for defendants and respondents were heard.

The first reason assigned for asking that the order denying the application of the appellant for a rehearing should be set aside and vacated and the rehearing granted is that Judges Fisk, Burke, and Goss participated in the deliberations of the court and in the decision denying the application, and were not judges of this court at said time, their term of office having expired on the first Monday in December of the year 1916, and that they had no legal right or authority to act, and therefore the order denying said motion for a rehearing was without authority of law and void.

[1] The reason thus presented for a vacation of the order denying a rehearing presents the identical question which was considered and determined by this court in State v. Robinson et al., 160 N. W. 512, 514. The plaintiff contends, however, that the opinion in State v. Robinson et al., reported in 160 N. W. 514, is of no force or effect and does not constitute an opinion of this court, for the reason that it was promulgated by four district judges purporting to sit and act as judges of the Supreme Court, and it is contended that the Supreme Court cannot be constituted wholly of district judges. This question was considered in the opinions above referred to and a contrary conclusion announced therein. We have again reviewed this question, however, and the court as now constituted are of the opinion that a district judge, when called to sit in a cause pending in the Supreme Court, becomes for all purposes of that cause a judge of the Supreme Court, and as such is invested with the same power and impressed with the same duties and obligations as those possessed by and imposed upon a person regularly elected a judge of the Supreme Court. And, in our opinion, the people have in section 100 of the Constitution designated the persons from whom justices of the Supreme Court may be chosen to take the place or places of any or all of the justices of the Supreme Court in any cause wherein any or all of such justices may be disqualified. The section of the Constitution referred to must have a reasonable and effective interpretation, and therefore, if it should so happen, as it may happen, that for some reason all of the justices of the Supreme Court shall feel themselves disqualified to sit in any particular cause, a full number of judges of the district court may be called in, who, for the purposes of the cause in which they are sitting, are clothed with the full power of the regularly elected and sitting justices.

It is also suggested that the opinion in State v. Robinson in 160 N. W. 512, wherein Justices Bruce and Christianson participated, is inconsistent with the opinion in the same cause promulgated by the four district judges sitting as justices of this court, and published in 160 N. W. 514, for the reason that the former opinion held “that Justices Bruce and Christianson ought to be relieved from participating in the hearing of the merits of this controversy unless the contending parties insisted upon their participation,” while the subsequent opinion published in 160 N. W. 514, shows that objection was made to the jurisdiction of the court as then constituted. It is therefore contended that Justices Bruce and Christianson ought to have participated in the latter decision. We have carefully examined the record, and find that this contention is wholly untenable. It is true the justices-elect filed written objections to the jurisdiction of the court, but such objection in no manner either suggested or requested that Justices Bruce and Christianson participate in the determination of the controversy. On the contrary, it was specifically asserted in the written objections so filed that “Justices Bruce and Christianson are equally interested in the outcome because it affects their term of office.”

The position assumed by counsel for the justices-elect was: (1) That all the members of the Supreme Court had a sufficient interest in the controversy then pending to disqualify them from participating; (2) that the Supreme Court of this state cannot consist solely of district judges called in to sit in places of disqualified justices of the Supreme Court, but that one or more of the regularly elected justices of the Supreme Court must necessarily participate in the decision of each cause. If this contention was carried to its logical conclusion, it would follow that in any cause in which the justices of the Supreme Court were disqualified that one or more of such justices must sit as a judge in his own cause, or else justice be defeated because no tribunal existed to settle the controversy. Such construction of section 100 of the Constitution would tend to defeat the obvious purpose of its enactment, and convict its framers of having intended to negative and in certain cases destroy the very object they sought to promote.

[2] And while we are not directly concerned with the decision in State v. Robinson, 160 N. W. 514, and find it unnecessary to express either our approval or disapproval of the principles of law therein announced, we are all agreed that that decision promulgated by four district judges sitting as judges of the Supreme Court is in fact the opinion of the Supreme Court of North Dakota, and entitled to the same consideration as though it had been promulgated by four regularly elected justices of the Supreme Court.

[3][4] The question whether the terms of office of Judges Fisk, Burke, and Goss expired on the first Monday in December, 1916, or the first Monday in January, 1917, is not involved in the instant case, however. The question is whether they were in fact either de jure or de facto judges. And we are all agreed that they were in any event officers de facto.

The authorities generally recognize that the three essential requisites of an officer de facto are: (1) The office held by him must have a de jure existence, or...