USA > North Dakota > Early history of North Dakota: essential outlines of American history > Part 56
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This fact, coupled with the exhaustion of the 1905 edition, induced the Thirteenth Legislative Assembly, in the year 1913, to provide for the compila- tion of all general laws in force on the first day of July, 1913, by authorizing the secretary of state, Thomas Hall, to contract with the Lawyers Co-operative Pub- lishing Co., of Rochester, N. Y., to codify, annotate and publish a compiled edition of the laws of North Dakota in two volumes, which were to be furnished to the state, its residents and various municipalities at the rate of $15.00 for the two volumes. The contract made with this company required not only the codification and classification of all the laws, but their annotation by reference to decisions of all the state, and United States, to the American Decisions, American Reports, American State Reports, Lawyers Reports Anno- tated, and the North Dakota Reports. The company fulfilled its contract and has published two volumes with annotations from the reports herein before specified and has divided each code into chapters and sections, which sections are consecutively numbered from 1 to 11,438 inclusive, and the secretary of state has accepted these volumes as the official compilation of the laws of the state.
CHAPTER XXVIII
THE SUPREME COURT
The constitution of the state, as submitted to the people and by them ratified, provides for a judicial system, consisting of supreme, district, county, and justice courts.
Police magistrates were to be chosen in cities, incorporated towns and villages.
The Supreme Court was to consist of three members, elected for a terni of six years each and to hold office until their successors were elected and qualified.
An exception was made in the case of the judges elected at the first election under the constitution.
They were to be classified by lot, so that one should hold his office for two years; one for five years, and one for seven years. The lots were to be drawn by the judges themselves, and the result of the drawing certified to the secretary of state and filed in his office.
By a unique provision-and one peculiar to North Dakota-no chief justice was to be elected by the people, but the judge having the shortest term to serve, not holding his office by appointment or election to fill a vacancy, should be the presiding judge of the court.
By this arrangement every judge elected for the full term would become the presiding judge before the expiration of his term.
This system prevailed until 1908, when, by constitutional amendment, the membership of the court was increased to five.
On January 15, 1909, the then governor, John Burke, appointed John Car- mody of Hillsboro and S. E. Ellsworth of Jamestown as associate judges of the Supreme Court.
At the general election in 1910 three judges were elected for the full term of six years each.
The qualifications prescribed by the constitution for a judge of the Supreme Court were :
I. That he should be learned in the law,
2. Should be at least thirty years old,
3. Should be a citizen of the United States and shall have been a resident of the Territory of Dakota or of the state at least three years next preceding his election.
The comprehensive term, "learned in the law," in its final analysis, means nothing more than that the candidate has been admitted to practice law in the courts of this or some other state. The presumption being that the admission to practice law, in the courts of this state, disclosed such a knowledge of the law as to place the candidate in the class of one "learned in the law."
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The first judges chosen at the election when the constitution was ratified by vote of the people in October, 1889, were Guy C. H. Corliss, of Grand Forks; Joseph M. Bartholomew, of La Moure, and Alfred Wallin, of Fargo. They were all elected for equal terms, and it became necessary then to determine by lot the length of term of service of each.
For the purpose of organizing the court and determining by lot the length of the term of service of each, these three judges met at Bismarck, the seat of government, and drew lots.
How the drawing was conducted was never made public, as the judges were required by law merely to certify the result and file the same in the office of the secretary of state. The result so certified discloses that Mr. Corliss drew the short term of three years from the first Monday in December, A. D. 1889, and by virtue thereof became the presiding judge, or the first chief justice in the state; Mr. Bartholomew drew the five-year term, and Mr. Wallin, the oldest in years of the three, drew the seven-year term.
At this same meeting a clerk and reporter of the court were appointed. R. D. Hoskins, of Bathgate, was appointed clerk in December, 1889, and has served continuously in that capacity since. Edgar W. Camp, of Jamestown, was at the same time appointed court reporter.
The duties and emoluments of these officers were such as might be pre- scribed by law and the rules of the Supreme Court not inconsistent with the law.
The clerk is the custodian of all the records of the court, viz. : briefs, plead- ings, files, including all papers used on appeal.
He furnishes a syllabus of cases heard and decided to such daily newspapers of the state as care to publish them.
The syllabus of all cases decided in the Supreme Court must be prepared by the judge thereof who writes the opinion in the particular case.
Every point fairly arising on the record and essential to the proper deter- mination of the case, must be decided by the court, be embodied in the opinion and covered in the syllabus. .
In most appellate courts of the United States, including its Supreme Court, the syllabus of cases is prepared either by the clerk or the reporter, and it fre- quently happens that the syllabus and body of the opinion are at variance as to the questions determined, resulting from the failure of these officers to compre- hend the opinion or understand and express in the syllabus in clear, pertinent language the law of that case as decided by the court and as stated by the judge who wrote the opinion.
The judge who writes the opinion knows what is decided in that particular case and is therefore properly equipped to prepare a correct syllabus.
The framers of the constitution made no mistake when they incorporated in that document the provision that syllabi should be prepared by the judges, who would, of necessity, be familiar with the controverted questions decided and the reasons upon which their determination turned.
The Supreme Court reporter prepares for publication, in books of not less than 550 pages, all decisions of the court. and includes in each case a brief state- ment of the points raised in the briefs of the appellant and respondent.
The Reports of recent years, however, have been copiously annotated by
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references to decisions of other courts wherein the same or kindred questions have been decided.
The Supreme Court had no legal home from its organization until 1909. It was a "migratory" court. The constitution had prescribed that three terms of court should be held each year, "one at the seat of government, one at Fargo, and one in Grand Forks." This arrangement continued until the passage by the legislative assembly, in February, 1909, of an act providing for two general terms to be held at the "seat of government," to be known as the April and October terms.
Special terms only may be held in cities other than Bismarck, the seat of government, upon twenty days' previous notice thereof in a newspaper pub- lished at the seat of government.
These special terms may be held elsewhere, when, in the opinion of the court, the public interests require.
Special terms have been held under this act in Grand Forks in June of each year, to receive the report of the State Bar Examining Board for the admission to practice law in this state of such persons as they found qualified and recom- mended. Special terms have also been held in Fargo for this same purpose.
All appeals from county courts with increased jurisdiction, or district courts, are heard and determined at Bismarck.
The constitution makes no provision for the appointment or election of a marshal or other officer for the service of any process issued by this court, or for attendance upon the court during its sessions. Accordingly, in 1890, the Legislative Assembly by act provided that the sheriffs of Burleigh, Cass and Grand Forks counties should act as marshals of the court when in session at their respective counties. These marshals were entitled to charge and receive the same fees and mileage for the service of process or other papers directed by the court to be served, and the same compensation for attendance upon the court, as is allowed by law to sheriffs ; such fees, however, to be paid out of the state treasury, as other state expenses are paid.
The court was authorized to appoint the librarian of the law library to act as bailiff of the court, his duties to be prescribed by the court. The librarian, how- ever, receives no additional compensation for any services he may render to the court. It is noteworthy here that the court has no librarian of its own, as the library remains, as in territorial days, in the custody of the secretary of state. The judges select the books to be purchased, but they are bought by the secretary of state out of any appropriation made therefor by the Legislative Assembly. The Assembly deserves criticism for failure to provide the court with its own librarian and in compelling it to use the librarian as a bailiff.
The judges are, to use the epigrammatic language of a citizen of Bismarck who investigated the matter when the proposition to increase the court member- ship to five was under consideration: "Worked like horses in harvest! They work unremittingly to keep up the calendar and avoid the delay which is inci- dent to appellate practice." It is no eight-hour day with them.
While the Legislative Assembly has appropriated for stenographers for the judges, it has not been as liberal or as generous as the needs of the court justify.
The great increase in population and the large number of judicial districts in consequence thereof, together with giving the right of appeal direct from
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judgments and proceedings in county courts having increased jurisdiction, have added very materially to the number of appeals.
Judges who work continuously under high pressure and the stimulus "to keep up the calendar" cannot in nature render the highest and best service. It requires intense research and investigation to find the very truth in conflicting propositions submitted for decision. To illustrate: It is not unusual for the Supreme Court of the United States to have cases under advisement for months and even years. Their calendar of cases as a rule is about three years behind. This is caused by the fact that while one judge is assigned to write the opinion all the other judges investigate the case, have a consultation day each week when the case is thoroughly examined, and not until the individual judges have mas- tered the case and reached a conclusion as to the law is it published as the deci- sion of the court.
Consequently lawyers prize very highly the opinions of the Supreme Court. They are invaluable as a true exposition of the law. State supreme courts do not and can not give such time to the consideration of cases submitted. The result is a different interpretation of the law in many of the forty-eight state jurisdictions, and frequent reversions and modifications of opinion as the tem- perament and predilections of judges differ.
LEGISLATION AFFECTING THE SUPREME COURT
At the general election in November, 1908, a constitutional amendment, increasing the membership of the court to five and which had passed two suc- cessive legislative assemblies, was adopted by the people and became an integral part of the constitution, while another amendment fixing the tenure of office at ten years, upon a submission to a vote of the people, was defeated.
The Legislative Assembly of 1909 provided for the office of chief justice and prescribed his duties. The judge of the Supreme Court having the shortest term to serve, not holding office by election or appointment to fill a vacancy, shall be chief justice and shall preside at all terms of the Supreme Court. If no member of the court is qualified for the office of chief justice under the fore- going provisions, then the judges of the Supreme Court shall select the chief justice. In the absence of the chief justice the judge having the next shortest term to serve, or a judge selected by the court, as the case may be, shall preside in his stead. This statute was necessary in view of the fact that when the mem- bership of the court was increased to five, three judges were elected for the term of six years each and took office at the same time.
In the closing hours of the Legislative Assembly of 1909 there was enacted the non-partisan judiciary law. In brief it provides that in petitions or affidavits filed by or in behalf of candidates for nomination at primary elections for the office of judge of the Supreme or District Court, no reference shall be made to the party ballot or the party affiliation of such candidate. There shall be sepa- rate ballots containing the names of the candidates for the respective offices entitled "The Judiciary Ballot." The names shall appear without party designa- tion, and there shall be stated thereon the number of judges each elector is entitled to vote for.
At the general election also there shall be a separate ballot known as the
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"Judiciary Ballot," upon which shall appear the names of all candidates nomi- nated at the primary election without party designation, but there shall be stated thereon the number of judges each elector is entitled to vote for.
The constitution prescribed that Supreme Court judges should receive such compensation for their services as might be provided by law, but such compen- sation should not be increased or diminished during the term for which a judge shall have been elected. But in view of the fact that the early court was of a migratory character, because terms were held at three different cities, the Legis- lative Assembly, in 1907, by act provided that each judge of the Supreme Court should receive the sum of $500 each year for traveling expenses and moneys expended by him while absent from home and while engaged in the discharge of his official duties, without requiring any itemized statement.
The annual compensation allowed to Supreme Court judges is $5,000.
The annual compensation allowed to the clerk of court is $2,000.
The annual compensation allowed to the reporter is $1,500.
Since statehood there have been six court reporters: Edgar W. Camp, of Jamestown, who edited and reported volume 1; R. D. Hoskins, who edited and reported volume 2; John M. Cochrane, court reporter from June 1, 1892, to January, 1902. He edited and reported volumes 3 to Io inclusive; R. M. Carothers, who edited and reported volume II. In March, 1909, the Legislative Assembly by law prescribed that the volumes of the Supreme Court reports should contain not less than 650 pages, exclusive of the table of cases and index, the pages to be 47/2 inches in width and the volumes to be furnished the state and sold at $2.25 a volume.
A true and correct matrix of each report to be delivered to the secretary of state to be preserved by the secretary as a part of the records of his office.
F. W. Ames, of Mayville, edited and reported volumes 12 to 21 inclusive, and H. A. Libby, of Grand Forks, volumes 22 to 32 inclusive.
These are all the volumes issued up to September 1, 1916.
JURISDICTION OF THE SUPREME COURT
Under the constitution of the state the Supreme Court has appellate juris- diction only, together with a general supervising control over all inferior courts. This control is restricted, however, by such regulations and limitations as may be prescribed by law.
The constitution further empowered the Supreme Court to issue original writs of injunction, mandamus, quo warranto, habeas corpus, and such other remedial writs as may be necessary in the exercise of its jurisdiction.
No jury can be allowed in the Supreme Court, but in proper cases where questions of fact must be settled before the court can finally decide the issues, it may certify such questions to a district court for determination.
In the meantime the decision of the court is held in abeyance until the find- ings of fact by the District Court are transmitted by that court for the informa- tion and guidance of the Supreme Court in its exercise of its appellate and super- visory powers.
The great prerogative writs of injunction, quo warranto and mandamus are the voice of the sovereign commanding to justice when ordinary judicial pro-
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ceedings afford no speedy or adequate remedy, hence, to warrant the issuance of such original writs by the Supreme Court the interest of the state must be primary and paramount. There must exist a contingency which requires the interposition of the court to preserve the prerogatives and franchises of the state and the liberty of its citizens.
In cases where this original jurisdiction is invoked the action proceeds in the name and upon the relation of the attorney general and he acts only upon leave first obtained from the court, which leave is based upon a showing that the case is one of which it is proper for the court to take cognizance, the court judging of each controversy for itself.
The consent of the attorney general to an application for one of these original writs is not, however, an indispensable condition of its granting. It may issue upon the relation of a citizen presenting a petition showing prima facie that the attorney general is hostile to its issuance and that a peculiar exigency exists where the interests of the state at large are involved, or where its sovereign power has been violated or the liberty of its citizens endangered.
A statement or showing that they are collaterally involved in any proceeding or action is not sufficient. The court will refuse the writ unless it manifestly appears that the interests of the state at large are directly menaced.
The essence of appellate jurisdiction is, that it revises and corrects proceedings in a cause instituted and adjudicated in another tribunal, and, therefore, the court does not look with favor upon applications for original writs.
It prefers to review them after they have been granted or refused in the in- ferior courts. It will not hesitate to issue them, however, if the exigency is great, the interests of the state imperiled or the liberties of its citizens endangered.
The legislative assembly, by the enactment of the law for the trial of equity cases de novo in the Supreme Court, imposed a duty upon that court that is incon- sistent and conflicts with its appellate jurisdiction.
The law, in effect, makes it a trial court. It does not provide for a review of erroneous rulings or the correction of mistakes of law in the inferior court, but requires the Supreme Court to wade through a voluminous record, containing usually a tangled mass of relevant and irrelevant testimony which the court below was powerless to exclude. The law is an innovation and not a reform or judicial procedure. It should be relegated to the "scrap heap" and equity cases be re- viewed the same as other cases.
SUPREME COURT JUDGES
Our first Supreme Court was one of great ability. Perhaps it would not be extravagant or beyond the bounds of truth to say it was one of superior ability.
The frequent reference to their decisions, as clear interpretations of the law, found in the reports of other states, is proof of this.
Judge Corliss was not only thoroughly versed in the principles and theory of the law, but possessed also high literary attainments. He was familiar with the literature of the past and abreast of that of the day.
While occasionally in his opinions there is a tendency to display this knowledge in a fanciful and pedantic way, still, as a rule, he spoke with a logic that convinced and with a language that charmed. Judge Corliss resigned from the bench mainly
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because of the inadequacy of the compensation allowed to the judges. He formed a partnership with John M. Cochrane at Grand Forks and actively practiced law there until he located at Portland, Ore., some three years ago.
Joseph M. Bartholemew of La Moure, was elected a judge of the Supreme Court in October, 1889, and in the drawing of lots to determine the tenure of office of the members of the first Supreme Court he drew the five-year term. He was elected for the full term of six years in November, 1894, and retired from the bench in December, 1900. Immediately upon his retirement he resumed the practice of his profession at Bismarck, and died suddenly of heart disease at his home on March 24, 1901. The judge was a native of Illinois, having been born at Clarksville in that state on the 17th day of June, 1843. When he was about two years old his parents moved to Lodi in the State of Wisconsin, where he lived and received his early education until he arrived at the age of eighteen years when he entered the Wisconsin State University. He spent, however, but one year there, and when only nineteen years old enlisted in August, 1862, as a private in Company H, Twenty-third Wisconsin Volunteer Infantry. He was mustered out as a first lieutenant on November 14, 1865. He participated in the sieges of Vicksburg and Jackson, aided in capturing the forts at the mouth of Mobile Bay and fought in the battle of Chickasaw Bayou and Arkansas Post.
After the war he studied law in the office of Senator Allison, at Dubuque, Ia., and was admitted to practice in that city in 1869.
In 1883 he came to the Territory of Dakota, settling at La Moure where he continuously resided until his election in 1889 as one of the first judges of the Supreme Court of the State of North Dakota. When he was nominated for the Supreme bench he was comparatively unknown to the bar, and there was a fear among the members of the bar that he would not measure up to the requirements of the office, but that fear quickly disappeared when the court began to hear cases and render opinions. The opinions written by Judge Bartholemew show that he was a man of high intellectual attainment, with a profound knowledge and understanding of the great principles of natural justice and equity, which are really the foundation of all law, and that he was a man of original thought, of great learning and strong logical reasoning power. The opinions written by him while on the bench were a credit to himself, an honor to the court and to the state. They were always clear, concise, logical and convincing.
The memorial presented to the Supreme Court as a tribute to his memory says : "As a judge he has left upon the records of this state in his judicial opinions so many witnesses to his ability, learning, sound judgment, powers of reasoning and discrimination, conscientious research and study, and abiding love of equity, that other commendation of his judicial work is rendered superfluous. Breadth and solidity ; mastery of legal and equitable principles ; close and cogent logic ; a beautiful, pure and clear style ; and fullness of legal learning are found there, not as we catch occasional and momentary glimpses of the moon when the sky is overcast, but shining with a steady and unbroken radiance from every page of his judicial utterances. Is it a vain boast that we ask whether juridical history furnishes many judicial careers which in so short a time have achieved a more envi- able success? We believe that he will be known in after days as one of the great judges of the state. Patient in hearing; exhaustive in research; deliberate in maturing his conclusions; without pride of opinion; always receptive of new
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light; self reliant and yet appreciating the value of precedent ; gracious in his demeanor with the bar and his brethren of the bench ; loved and respected by them all; far above even the suspicion of the possibility of any unworthy motive enter- ing to disturb the incorruptible discharge of his judicial duty ; he may well be described, and he will long be remembered as, an ideal judge."
Judge Alfred Wallin was a specialist in practice and procedure. His style of expression was at times stilted and ponderous, but was always luminous and cor- rectly stated the law. His published opinions stand as a monument to his research, learning and ability.
Judge Guy C. H. Corliss was elected for the full term of six years commencing December, 1892. He resigned in 1898 and N. C. Young of Bathgate was appointed to serve the unexpired term, and was then elected for the term of six years, com- mencing in December, 1898, and was re-elected for the term commencing in December, 1904. He resigned the office in 1906 to become a member of the firm of Ball & Watson, general counsel for the Northern Pacific at Fargo. He has built up a large and lucrative private practice, in addition to that afforded as one of the attorneys for the Northern Pacific. Since leaving the bench he has interested himself in educational affairs. He was a member of the board of edu- cation at Fargo for some years, and a trustee of the University of North Dakota, but resigned this position, as his business interests demanded all his time and energy. The lawyers universally regretted his resignation from the bench. He had impressed the profession as a man of strong mental and moral fibre, who possessed not only intellectual conscientiousness but "saving common sense," and whose aspirations and ambition were to serve faithfully his country by correctly expounding the law applicable to the cases heard in his court. Briefly he filled this high office with fidelity, credit and distinction.
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