USA > North Dakota > Early history of North Dakota: essential outlines of American history > Part 57
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David E. Morgan of Devils Lake, served as judge of the Second Judicial District for the term of eleven years, covering the period from the beginning of statehood until November, 1900, when he was elected to the Supreme bench. He was re-elected in 1906 and was a member of that court until the 31st day of October, 1911, when, because of failing health, he deemed it his duty to the public and to the court to resign. He was the chief justice at the time of his resignation. In the hope that a change to the milder climate of California would restore his health he visited that state, but his recuperative powers were gone and he succumbed to the "Grim Visitor" and went to his final home May 11, 1912.
Judge Morgan was born in Coalport. Ohio, on the eighth day of November, 1849. His parents were natives of Wales. They moved to the State of Wisconsin when the judge was a child of tender years. His education was acquired in the public schools of that state, at Spring Green Academy, at the Platteville State Nor- mal School and at the Wisconsin State University, where he spent a year pursuing a special course. He was elected three times as clerk of the District Court of Sauk County, Wisconsin, and during this time he studied law with Judges Rem- ington and Barker at Baraboo, Wis. He was admitted to practice law in that state in 1879 and moved to Grand Forks in 1881 and was in partnership for a time with Arthur H. Noyes. When the Great Northern Railway extended its line to Devils Lake he moved there, in 1883 and formed a partnership with John F. McGee, who subsequently became a district judge in Minneapolis, Minn. He was elected district attorney of Ramsey County in 1884 and re-elected in 1886,
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and in October, 1889, was elected the first judge of the Second Judicial district.
Judge Morgan was not only a popular judge in that district because of his faithfulness in discharging the exacting duties of this position, but was also highly esteemed by the bar and the people because of his intense loyalty to the law and his devotion to the principles of liberty as enunciated in our Constitution and as interpreted by the fathers. He was a man of decided convictions, perhaps might be said to have been somewhat slow in reaching conclusions. Of delightful personality, of frank and attractive manners he impressed his constituency as a man who is inspired by the loftiest motives and one who endeavored to mete out equal justice to all.
The Bar Association of the State of North Dakota thus records its appreciation of the memory of Judge Morgan: "We regret the passing of the man of noble character, and the just and fearless judge. We regret that his life and official career could not have been prolonged to the end that his influence might be felt, in the court over which he so long presided, in the settling of new and vexing questions certain to arise incident to the new thoughts and ideas so rapidly developing in our political and industrial life. The great wisdom of the great- est judges of our country he may not have possessed, but legal learning and breadth of thought sufficient to comprehend underlying principles, together with a broad sense of justice, a full grasp of large equities, and abundant common sense, guided him instinctively to the right and contributed to the decisions in thirteen volumes of our reports, from which it will be said in the years to come, he was sound, able, and honest. Reviewing his twenty-two years of judicial experience, we do highly resolve to pay to his memory this tribute: With all his sympathies and love of humanity he was never so much the man that he forgot his duty as a judge, and with all his knowledge of law and precedent he was never so much the judge that he forgot his duty as a man."
John Knauf, of Jamestown, was appointed by Governor E. Y. Sarles to fill the vacancy occasioned by the resignation of Judge Young. He served until December 15, 1906, when he was succeeded by Charles J. Fisk, judge of the First Judicial District.
Mr. Knauf had been nominated by the republican convention held at James- town for supreme judge. The bar in the northern part of the state were clamorous for the nomination of Fisk and to take the judiciary out of politics, but the friends of Knauf effected a combination of delegates from the west and central portions of the state, sufficiently strong to nominate Knauf. Public sentiment was then ripe for a non-partisan judiciary. The people revolted and at the ensuing election, held in November, defeated Knauf and elected Fisk. Mr. Knauf returned to his home in Jamestown and resumed the practice of law.
Charles J. Fisk, of Grand Forks, who had for ten years served with conspicu- ous ability and fidelity as district judge of the First Judicial District, was elected in 1906 to fill the unexpired term of Judge Young, and was re-elected for the term of six years commencing December 15, 1910.
In political affiliations he is a democrat and is the only democrat ever elected to this court in the state. John Carmody of Hillsboro, a democrat, was, when the membership of the court was increased to five, appointed by Governor John Burke as associate justice. With these two exceptions the members of the court have been republican. .
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Judge Fisk has been an ideal judge. He has interprèted the law along broad lines and has avoided technical rules whenever in his judgment they conflicted with substantial justice. No consideration other than the merits has ever influenced him in the determination of cases. His profound knowledge of the law and his desire to expound it along just and equitable lines radiate from every page of his opinions. He has illuminated every branch of the law that was involved in cases heard before him, but has never paraded his learning, never indulged in flights of fancy or imagination, but has expressed his views of the law in simple, pertinent language that carried conviction of the soundness of his interpretation. His kindliness of disposition, his independence and impartiality, as well as his learn- ing, have endeared him to the profession. The value. of his services to the state cannot yet be correctly estimated. He is a candidate for re-election in November, 1916, being one of the six highest named in the primary in June as one of the judges of the Supreme Court, and it is to be hoped that the people at this election will recall his service to the state and, with a grateful appreciation thereof, will vote to retain him on the bench which he has graced and dignified all the years of his judicial career.
John M. Cochrane, of Grand Forks, was elected a judge of the Supreme Court for the term of six years in November, 1902. He died in office July 20, 1904. The republican state convention for the nomination of congressman and state officials was in session at Grand Forks at the time of his death. While Mr. Cochrane, after his election as judge, withdrew from active participation in the political affairs of the state, still, he attended this convention on July 20, 1904, as a disinterested spectator. He took no part in the proceedings of the conven- tion, but was consulted by delegates as to the policy of the party and advised them in its selection of nominees for the different state positions. He had always main- tained that it was not fitting for a man chosen from the active work of life to the exalted position of judge, to mingle in a partisan way in the politics of the state, but he was unable to resist the importunities and insistence of erstwhile friends and freely conferred with them and aided them in solving questions of polity. These were always private conferences. No persuasion or influence could induce him to serve as a delegate in the convention, or to participate in any way in its public deliberations. He believed that he had been sequestered from public affairs, so far as administration was concerned, and that his life was thence- forward dedicated to the interpretation of the law and in adjusting in a con- scientious, fair and just manner the differences of litigants. He spent a few hours in these conferences, and returning to his home on July 20th he expired suddenly about midnight. So the immortal soul of the great Cochrane passed to the great beyond.
It was apparent to his friends before his promotion to the bench that death had marked him for an early victim. An insidious disease that baffled the high- est medical skill had fastened its fangs upon him and was slowly but surely sap- ping his vitality. He faced that ordeal of suffering without dismay. It was the hope of his friends that removal from the excitement, strife and labor incident to court trials would prolong his life, and so they secured his elevation to the bench. Cochrane died a victim of overwork. He never knew how to play. De- voted to the interests of his clients, whether city, county, state or private, he spent long hours in exhausting study and research until he had mastered the case
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and was fully prepared to protect and defend the interests committed to his care. All his trusts he filled with the highest fidelity and with superior ability. His was a great and towering personality, and in exalted mental endowments he stood as a mighty rock in the sea.
The distinguishing quality of Mr. Cochrane's character was his humanity. He was intensely human, was not a saint and did not affect to be. He believed in the great essential virtues and had no patience with sham or pretensions. His favor- itism was lofty and generous, his moral courage great, his sincerity in word, deed and thought absolute, but his intense love of humanity was the touchstone and basis of his character.
The resolutions of the Cass County Bar Association and those of Grand Forks County where he spent his life, which are recorded in the annals of the Supreme Court, are a worthy, fitting and truthful tribute to his memory. They are found in volume twelve of the Supreme Court Reports.
Edward Engerud was nominated by the republican convention then in session to fill the unexpired term of Mr. Cochrane, and he was elected judge in Novem- ber following and re-elected for the term of six years in 1904 and resigned his office in 1907. Why he resigned an office whose duties and responsibilities he was well equipped to discharge he never publicly stated, but to intimate friends he made known the fact that financial considerations largely controlled. He was not in affluent circumstances, and with a family to maintain he deemed it advis- able to retire from the bench and devote himself to the practice of law. No doubt the meager remuneration paid by the state, the uncertain tenure of the office, in view of the discontent and unsettled political conditions then prevailing in the state, contributed also to the decision. He formed a partnership and be- came the senior member of the firm of Engerud, Holt & Frame at Fargo. His reputation as a successful and resourceful trial lawyer was such that from the beginning of his return to practice his services were in great demand. In 1910 he was a candidate for United States senator to fill the unexpired term of M. N. Johnson, deceased, but was defeated for the nomination in the primary election by A. J. Gronna. Subsequently he was appointed by President Taft United States district attorney for the state, and he discharged the duties of this re- sponsible office with rare ability and fidelity.
Burleigh F. Spalding of Fargo was appointed by Governor John Burke to fill the unexpired term of Judge Engerud. Mr. Spalding had been prominent in public affairs in territorial days. He was a member of the famous capital com- mission created by the Territorial Legislature in Yankton in 1883, which located the capital of the Territory of Dakota at Bismarck. He served with distinction in the convention that framed the constitution of the state, and was conspicuously efficient as a member of the joint commission to equitably distribute the assets and liabilities of the Territory of Dakota between the states of North and South Dakota. He served one term in Congress, but was defeated for renomination in the republican convention by a clique of ambitious malcontents from Cass County. reinforced by a group of delegates from the slope country. The slope country never forgave him for his failure to vote for Bismarck as the capital of the territory. Mr. Spalding was elected for the full term commencing December 15. 1908, but was defeated for re-election in 1914. Mr. Spalding's temperament is of judicial cast. He is well grounded in principles of the law, and he is logical
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and discriminating in applying these principles to concrete cases. His published opinions are expressed in terse, lucid language without any attempt at rhetorical effect. They are a plain exposition of the salient features of the controversy. He is both a sound and able jurist.
In November, 1910, Edward T. Burke, of Valley City, judge of the Fifth Judicial District, and Evan B. Goss, of Minot, judge of the Eighth Judicial Dis- trict, were elected associate judges of the Supreme Court for the term of six years commencing in December, 1910. They defeated John Carmody and S. E. Ells- worth, the appointees of Governor John Burke.
At the primary election held on June 28, 1916, Judge Burke was selected as one of the six to go on the nonpartisan judicial ballot for election in November. Judge Goss was defeated in the primaries and retired from the bench in De- cember, 1916.
The Farmers' Nonpartisan League, through its officers and executive com- mittee, selected J. E. Robinson, of Fargo, L. E. Birdzell, of Grand Forks, and R. H. Grace, of Mohall, as their representatives on the supreme bench, and they were nominated in the primary and constitute three of the six whose names appeared on the judicial ballot at the general election in November, 1916. Chief Justice Fisk, Judge Burke and former Chief Justice Spalding are the other three. From these six the three receiving the highest number of votes in November would become the justices of the Supreme Court.
Birdsell, Grace and Robinson were chosen at the November, 1916, election.
On the 31st day of October, 1911, Chief Justice David E. Morgan, be- cause of failing health, resigned, and Governor John Burke appointed Andrew A. Bruce, of Grand Forks, who was dean of the law school of the University of North Dakota, to succeed him. Mr. Bruce was elected for the six-year term be- ginning in December, 1912. He was both popular and capable as a professor of law. The graduates from the law school, who had located for practice in various sections of the state, supported him enthusiastically and he easily defeated Robin- son, his rival. Judge Bruce had but little practical experience in the courts, but he had thoroughly mastered all departments of the law. His opinions, while sub- ject to criticism because of their verbosity, are like a treatise in their exposition of the law applicable to the particular case-they exhaust the subject. Some of them are models of diction and learning and show long hours spent in study and research.
A. M. Christianson, of Towner, defeated Judge Spalding at the polls in No- vember, 1914, and was elected for a term of six years. He has been an indefatigable worker since his election to the bench and has aided the court very materially in keeping the calendar up to date. He follows closely the lines of least resistance and adheres to the "beaten paths" as shown in the precedents. A rule established in a given case, though it may be severe and somewhat arbitrary and therefore not promotive of substantial justice in many cases before the court for adjudication, should not be religiously binding upon the court but should be waived, modified and adapted to the changed conditions of the times. Though Judge Christianson has a sharply discriminating, open mind that analyzes carefully every proposition submitted for his consideration and conscientiously investigates it, and the con- clusions reached express his honest judgment of the law in that case, yet his close adherence to precedents makes him more of a "case" judge than an original expounder of underlying principles.
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THE DISTRICT JUDGES
The district judges are twelve in number, as follows: Ist, Charles M. Cooley, Grand Forks; 2d, C. W. Butts, Devil's Lake; 3d, A. T. Cole, Fargo; 4th, Frank P. Allen, Lisbon ; 5th, J. A. Coffey, Jamestown; 6th, W. L. Nuessle ; 7th, W. J. Kneeshaw, Pembina ; 8th, K. E. Leighton, Minot ; 9th, A. G. Burr, Rugby ; 10th, W. C. Crawford, Dickinson; IIth, Frank E. Fisk, Williston; 12th, James M. Hanley, Mandan.
THE BAR ASSOCIATION OF NORTH DAKOTA
The North Dakota Bar Association was organized at Fargo in the year 1899, soon after the admission of the state to the Union. Hon. Seth Newman, of Fargo, was its first president, and R. W. S. Blackwell, of La Moure, its first secretary. It had a very checkered career in the early years of its existence, as few lawyers outside of the Red River Valley and the larger towns in the central and western portions of the state enrolled as members of the association.
ITS PURPOSES
The objects for which the association was formed were :
I. To maintain the highest standard in the profession.
2. To promote professional fellowship among its members and the lawyers of the state.
3. To aid in the securing of good government in the state and nation.
4. To preserve inviolate the present high standard of the judiciary.
ORGANIZATION
All members of the bar of the state in good standing, who shall be accepted by the executive committee and who shall pay the yearly fee of $5 may become members of the association.
An executive committee consisting of the officers of the association, viz .: The president, vice president, secretary and treasurer, together with one person from each judicial district, who shall be appointed by the president, passes upon the qualifications of applicants for admission to the association. No lawyer can become a member of the association until his application has been approved by this executive committee.
The association meets at least once in each year, but whenever an exigency presents itself, the president may call a special meeting at the request of three members of the association.
The work of the association devolves upon three standing committees, viz. :
I. Committee on jurisprudence and law reform.
2. Committee on legal education and admission to the bar.
3. A disbarment committee.
It is the duty of the committee on jurisprudence and law reform to consider proposed amendments to the codes at each meeting of the association, to report the changes, if any, that have been made by the Legislature since the last meet- ing, also all modifications of the rules of practice that shall have been made by the Supreme Court, and to recommend such changes in the code and in the Vol. I-30
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practice, as in the judgment of the committee tend to secure a proper reform of the laws.
It is the duty of the committee on legal education and admission to the bar to recommend to the faculty of the University of Law a course of study to be pursued as a qualification for admission to the bar, and to recommend to the Supreme Court a standard of education and qualification to be adhered to as prerequisite of admission to the bar.
The committee has recommended a three years' course of study as a pre- requisite to admission and the passing of an examination on twenty-seven different subjects covering every branch of substantive law and practice as an essential qualification of admission to practice. These recommendations have been approved by the Supreme Court, and the result has been to give to the state in the past five years a large number of young lawyers well versed in the law and thoroughly equipped in the practice.
The disbarment committee consists of three attorneys who have supervision of all complaints made to the association against members of the bar of the state, whether members of the association or not.
It is their duty to investigate all such complaints when they are substantiated by affidavits or documentary evidence supporting the charges. They must fix a day for the hearing of the proofs of the charges, give the accused at least ten days' notice of such hearing and permit him to appear and produce before the committee any evidence he may desire to submit. The investigation must be made secretly and without any publicity whatsoever, and if the committee find from their investigation that further investigation is necessary, it is their duty to prepare and file in the office of the clerk of the Supreme Court an accusation in accordance with the provisions of the Revised Codes relating to disbarment, and see that it is presented in that court.
The Legislature has prescribed by statute that all complaints against mem- bers of the bar shall be referred to the Bar Association, and its officers and committees are clothed with authority to subpoena witnesses and administer oaths.
The expenses of conducting investigations and prosecutions are by law an absolute charge against the state. There is an annual appropriation of one thousand ($1,000.00) dollars by the state for this purpose, to be disbursed under direction of the Supreme Court.
The attitude of the association toward good government is well expressed by Hon. John E. Greene, of Minot, who was president of the association in 1912, and who in the annual address to the association at Jamestown, September 3, 1912, said :
"If we are to aid in securing good government, we must participate in every controversy, the issue of which may affect the stability and efficiency of any department of the government. Any law which threatens that stability and efficiency is an assault upon the justice which guarantees to every man that which is his due. And shall we, as ministers of justice, stand idly by while laws are made which tie the hands of her judges, disgrace her courts, and make mockery of the immutable principles which, in and by her name, have won every battle for human liberty, sanctified the noblest efforts, and crowned with amazing success the worthiest ambitions of men? Let it not be understood that the enact- ment of such laws is regarded as a necessary result of the present agitation with
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respect to governmental reforms. But we must not overlook the possibilities. History admonishes that the excessive zeal of advocates of radical measures has often so aroused the passions of the people that their action has reached extremes undreamed of by their most enthusiastic leaders. The existence of such condi- tions presents a rare opportunity for the bar, through conscientious and con- certed action, to demonstrate its fidelity to the common good, and render worthy service to a somewhat bewildered people. It can be done by proceeding, with diligence and energy, to weed out from our laws those things which make it possible to defeat justice by delay ; which hedge about the courts with a network of useless technicality in the matter of pleadings, objections, exceptions, assign- ments, and specifications of error, statements of the case, bills of exceptions, and many other things which bring no light or aid to courts or juries in determining the rights of litigants; things which make unjustly expensive the processes of appeal, and which make records on appeal confusing instead of helpful to the Appellate Court.
"If we can demonstrate to the people that it is the purpose of the lawyers of the state, acting through this association, to simplify the procedure and to shorten the time between the summons and the judgment, we shall not only help the litigant, but we shall help ourselves and satisfy the people that the bar deserves more consideration than it has had from them in recent years.
"Every lawyer knows that these reforms in matters of procedure are the things which the profession wants, and that reforms in other things to be men- tioned later, are needed, but members of the profession have heretofore been indifferent to their own welfare, and to that of their clients, and so the reforms have not come. The people have also the right to expect from the bar direction and aid in securing upright and capable judges. It is the imperative duty of every lawyer, and of the county, district and state bar associations, to use every legitimate means to insure the selection, for such positions, of the men having the highest qualifications therefor. Neither partisanship nor any other considera- tion should deter the bar from taking the most advanced position in this matter. Our critics may accuse the association of mixing in politics if it undertakes to influence the judgment of the people in these things.
"We need not hesitate to plead guilty to the accusation. Under our system of state government the election of judges is a political affair of the highest order. And shall not that body of men which can best judge of the qualifications of lawyers for judicial office indulge in the politics which involves the selection of such officers?
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