USA > North Dakota > Early history of North Dakota: essential outlines of American history > Part 58
Note: The text from this book was generated using artificial intelligence so there may be some errors. The full pages can be found on Archive.org (link on the Part 1 page).
Part 1 | Part 2 | Part 3 | Part 4 | Part 5 | Part 6 | Part 7 | Part 8 | Part 9 | Part 10 | Part 11 | Part 12 | Part 13 | Part 14 | Part 15 | Part 16 | Part 17 | Part 18 | Part 19 | Part 20 | Part 21 | Part 22 | Part 23 | Part 24 | Part 25 | Part 26 | Part 27 | Part 28 | Part 29 | Part 30 | Part 31 | Part 32 | Part 33 | Part 34 | Part 35 | Part 36 | Part 37 | Part 38 | Part 39 | Part 40 | Part 41 | Part 42 | Part 43 | Part 44 | Part 45 | Part 46 | Part 47 | Part 48 | Part 49 | Part 50 | Part 51 | Part 52 | Part 53 | Part 54 | Part 55 | Part 56 | Part 57 | Part 58 | Part 59 | Part 60 | Part 61 | Part 62 | Part 63 | Part 64 | Part 65 | Part 66 | Part 67 | Part 68 | Part 69 | Part 70 | Part 71 | Part 72 | Part 73 | Part 74 | Part 75 | Part 76 | Part 77 | Part 78 | Part 79 | Part 80
"We may not, and we ought not, to suffer partisanship to enter into this question, but the politics of a judicial campaign is a thing apart from partisan- ship. In every such campaign, a bar association should be the most active, the most potent factor in it.
"The enactment of laws to shorten and make plain the highways of justice, and the selection of upright and wise men to administer justice according to those laws, are the things which, more than all others, give strength and stability to government.
"This association under its constitution stands pledged to aid in securing good government, and especially to the maintenance of the highest standard of the judiciary. Within the bar of the state exists the ability and the power to promote and attain these things, and if in the accomplishment of them we must
468
EARLY HISTORY OF NORTH DAKOTA
resort to politics, it is incumbent upon the bar, by bringing those qualities into action, to demonstrate to the people of this state that it can be done, and that the bar is the cleanest and most progressive political power in the state.
"Steadfastly and earnestly pursuing such a course, we shall soon find the people of this state looking to us for guidance in these important concerns, with confidence in our loyalty to their interests as well as to our own. We owe it to ourselves and to the cause of justice to put ourselves into such a relationship to the people of this state and their government.
"It was my privilege last winter to hear one of the greatest of American lawyers and statesmen, when addressing a similar organization, use words which ought to kindle some enthusiasm in the heart of any lawyer. He said :
" 'We have believed, we have always believed, our fathers believed, our gov- ernment is founded upon the belief, that for the weakest and the humblest, be he a criminal condemned to death, be he without friends, money or power, or influence, whoever speaks in the name of that justice which is superior to human desires and impulses and wishes, has behind him the power of the deliberate and mature judgment of the people in their sober moments, when the voice of the people is the voice of God. * * *
" 'There is one thing which above all others has seemed to me to make the advocate of essential value to the preservation of liberty and the maintenance of justice, and that is that he fears not the face of power. With all our short- comings, with all the wide variation of character, and the many differing degrees of ability and force which are found in an association of lawyers like this, there is one thing among all the lawyers of America we are sure to find, and that is, that for the weakest, for the poorest, for the most unnoted and uncared for client, we fear not, not one of us, not the weakest of us, to assert rights against all overwhelming power whatever. So long as there exists in a civil community a great body of men who have that characteristic, liberty cannot die.'"
REFORM OF CIVIL PROCEDURE
The aim of the association is to have the civil procedure improved and sim- plified by rules of court rather than by legislative enactment. It realizes that legislative reform is a slow process, that it can be had only at long intervals, while such reform as the courts themselves have the power to apply can be had without delay. Small defects in procedure, or mere verbal inaccuracies, may render a law inoperative. Amendment by law of such defects or inaccuracies is of necessity slow, while reform by rules of court is elastic and defects and inaccuracies can be readily amended, modified and perfected as time and experi- ence may demonstrate. The whole subject matter is peculiarly within the province of the judicial department, and it is to be hoped that the bar association will labor with the Legislature until it ceases to legislate on procedure and rele- gates the entire subject to the courts. The present tendency in North Dakota is toward making changes in and additions to our laws easier, and to invite into the field of legislative activity the entire electorate of the state. It is not surprising that those who are giving intelligent thought to questions of civil government should begin to devise plans for placing beyond the reach of legislative inter- . ference the subjects of practice and procedure in the courts.
Elihu Root, president of the Bar Association of New York, in 1911, com- menting on this subject, said :
469
EARLY HISTORY OF NORTH DAKOTA
"Comparison between the two statutes reveals plainly the fact that for many years we have been pursuing the policy of attempting to regulate by specific and minute statutory enactment all the details of the process by which, under a multi- tude of varying conditions, suitors may get their rights.
"Such a policy never ends. The attempt to cover by express, specific enact- ment, every conceivable contingency, inevitably leads to continual discovery of new contingencies and unanticipated results, requiring continual amendment and supplement. Whatever we do to our Code, so long as the present theory of legislation is followed the Code will continue to grow and the vast mass of specific and technical provisions will continue to increase. I submit to the judg- ment of the profession that the method is wrong, the theory is wrong, and that the true remedy is to sweep from our statute books the whole mass of detailed provisions and substitute a simple practice act containing only the necessary fundamental rules of procedure, leaving all the rest to the rules of court. When that has been done the Legislature should leave our procedure alone."
Again in the same address, and referring to the practice under the New York Code as it now is, he said :
"Let me recall some of the effects of such a system as we now have, well known as they are to all of us. The system of attempting to cover every minute detail with legislation appropriate to every conceivable set of circumstances is to create a great number of statutory rights which the courts are bound to respect because they are the law; which suitors are entitled to demand because the law gives them. In some cases they may contribute to the attainment of justice. In other cases they may obstruct it. The courts cannot apply the rule of justice because they must apply the law. These artificial statutory rights become the subject matter of special litigation intervening between the demand for redress and the attainment of it."
OFFICERS SINCE ORGANIZATION
Presidents
Seth Newman, Fargo, 1899-1902.
James H. Bosard, Grand Forks, 1902-1904.
H. A. Libby, Park River, 1904-1906.
John Carmody, Hillsboro, 1906-1907.
S. E. Ellsworth, Jamestown, 1907-1908.
F. H. Register, Bismarck, 1908-1909. Lee Combs, Valley City, 1909-1910. Andrew A. Bruce, Grand Forks, 1910-1911.
John E. Greene, Minot, 1911-1913.
A. G. Divet, Wahpeton, 1913-1914. John Knauf, Jamestown, 1914-1915. B. W. Shaw, Mandan, 1915-1916.
Secretaries
W. J. Burke, Bathgate, 1899-1902.
W. H. Thomas, Leeds, 1902-1912.
W. H. Stutsman, Mandan, 1912-1913.
Oscar J. Seiler, Jamestown, 1913-1916.
CHAPTER XXIX
PROHIBITION
A brief statement of the sentiment of the Territory of Dakota prior to its division into separate states is essential to a clear understanding of the steps which led to the adoption by the Constitutional Convention of an article pro- hibiting the manufacture and sale of intoxicating liquors as a beverage, and providing for its submission for ratification or rejection, to a separate vote at the election which should be called for the adoption of the constitution.
Many people both of North and South Dakota were opposed to the license system for the sale of intoxicating liquors, which had been the policy of the territory from its creation. This license system made it possible for saloons to exist in every city, town and village of the territory. Saloons were everywhere, saloonmen were dominant political factors and were in many localities the con- trolling influence in the selection of county, city and school officers.
Temperance people denounced the lawlessness of the saloonmen and led by the Woman's Christian Temperance Union, inaugurated in the early 80's sys- tematic work for the extermination of saloons and the eliminating of saloonmen as political powers in the territory. Their agitation and efforts in behalf of temperance awakened public sentiment and the Territorial Legislature chosen in 1887 was opposed to the license system and favorable to prohibition. It enacted a county local option law, and it was approved by the then governor of the state, Louis K. Church, on the 11th day of March, 1887.
A number of counties by vote substituted the prohibition policy for the license system and the battle for the banishment of saloons from the territory was earnestly waged, and the sentiment for absolute prohibition throughout the territory marched forward by leaps and bounds.
The Territorial Legislature which assembled at Bismarck in January, 1889, was favorable to prohibition. A bill providing for it throughout the territory was passed by the Council, but on the 22d day of February, 1889, the Congress of the United States had passed, and President Cleveland had approved, the so-called "Enabling Act," in which was a provision for the division of the terri- tory, and its admission to the Union as two separate states.
OCCUPATION GONE
The Territorial Legislature wisely concluded its "occupation was gone" and therefore the House defeated the prohibition bill of the Council and relegated the entire subject to the prospective states. This bill was practically and literally a copy of the statute of Kansas on the subject, and was the foundation upon
470
471
EARLY HISTORY OF NORTH DAKOTA
which was constructed the present prohibitory law of this state. The "Enabling Act" prescribed that the governor of the territory, the chief justice and the secre- tary thereof, should meet at Bismarck, the then capital of the territory, and divide it into twenty-five districts, as nearly equal in population as practicable, three delegates to be chosen from each district, who were to meet at Bismarck for the North Dakota Constitutional Convention. Prior to the Constitutional Convention there was an organization existing in North Dakota known as The North Dakota Non-Partisan Temperance Alliance, which took an active part in the selection and election of delegates favorable to the principle of prohibition. Under its auspices a state convention composed of about one hundred delegates convened at Grand Forks, to consider the question of prohibition.
After a full discussion and consideration of the question in all its aspects, this convention recommended that an article favoring prohibition be embodied in the constitution and submitted to the people as a separate proposition. They wanted an independent expression of sentiment, and did not desire that the final adoption of the constitution by the people be endangered. It feared that the saloon element in the state might combine with those opposed to statehood and thus defeat the constitution itself. This strategic move of the temperance forces impressed the delegates of the Constitutional Convention favorably, and the effort to embody prohibition in the constitution, to stand or fall with the con- stitution as a whole, was defeated by a substantial vote. The outcome of the election on the adoption of the constitution proved the wisdom of the temperance forces, as the article was adopted by the meager majority of 1,159, there being 18,552 for the adoption, and 17,393 against adoption. President Harrison issued his proclamation declaring that North Dakota had adopted a constitution, repub- lican in form, with prohibition as a separate article thereof, and admitting it into the Union on the 2d day of November, 1889.
Upon the happening of this event, John Miller, who had been elected governor of the state, called the first session of the State Legislature to assemble at Bismarck on the 19th day of November, 1889, which continued its session up to and including March 18, 1890.
NON-PARTISAN ALLIANCE
In the meantime the North Dakota Non-Partisan Temperance Alliance had selected Charles A. Pollock, of Fargo, who for many years has been judge of the Third Judicial District, a recognized leader of prohibition sentiment, and a notably vigorous prosecutor of violators of the local option law; Robert M. Pollock, who had been a member of the Constitutional Convention, and chiefly instrumental in the passage of the prohibitory article; and George F. Goodwin, the first attorney-general of the state, and a known prohibitionist, as a committee to draft and submit for the consideration of the Legislature, a law which should prescribe regulations for the enforcement of the prohibitory article, and provide adequate penalties for its violation. The work of preparing this law devolved mainly upon Judge Pollock, and the ground work upon which he built the entire statute was the prohibition bill passed by the territorial council of 1889.
This bill was amended, modified and adapted to the different conditions prevailing in North Dakota, some provisions of the Iowa law on the subject
472
EARLY HISTORY OF NORTH DAKOTA
were incorporated and a number of original propositions were added, especially the procedure in contempt cases. This procedure is found in no other law of the United States, and to Judge Pollock belongs the credit of originating and perfecting it. The law so prepared was introduced in the House, by Representa- tive Haugen of Grand Forks, chairman of the temperance committee of the House, and is known on its records as House Bill No. 6. It was simultaneously introduced in the Senate by Senator Rowe of Cass County, who was also presi- dent of the Temperance Alliance, and it is known. on the Senate Records as Senate Bill No. I.
The House acted promptly and passed the bill with few amendments, the most important being that the law should take effect April Ist, instead of Janu- ary Ist, as provided in the original draft. On December 12, 1889, it passed the House by a vote of 59 ayes to I nay, two members being absent and excused. It was in due course messaged to the Senate, where it successfully "ran the gauntlet" of dilatory motions and amendments. The principal amendment made in the Senate was to strike out "The Emergency Clause" making the law in force and effect July Ist. This amendment was concurred in by the House and the bill was enrolled, signed by the proper officers of the respective houses and presented to Governor Miller, who signed the same on the 19th of December, 1889. Thus promptly the Legislature obeyed the mandate of the fundamental law of the state and by statute law prescribed drastic penalties for its violation.
On July 1, 1890, the open saloon disappeared from the state, except in a few communities, where the local sentiment was adverse to prohibition. The reput- able saloon men who had prospered under the license system, as a rule obeyed the law, closed out their business and moved to states where the license system was in vogue.
The lawless, disreputable and irresponsible persons opened "blind pigs" and supported, to a certain extent, by public sentiment in their locality, evaded the law and defied the authorities. Then a volunteer association was formed in the state, known as the State Enforcement League, which, in co-operation with the Woman's Christian Temperance Union, raised funds and vigorously made war upon these law breakers. Great credit should be given these organizations for their vigilance in suppressing this lawlessness, and in enforcing the statutory and constitutional provisions. Their members gave freely of their time and money, not only to exterminate saloons and blind pigs, but also to secure legisla- tion strengthening and making more efficient the existing law. Representatives of these organizations attended the legislative sessions and defeated every attempt to weaken the law, or to submit the question of prohibition again to the vote of the people. Frank Lynch, a prominent business man of Cass County, was president of the Enforcement League, until he moved to California, when he was succeeded by R. B. Griffith, of Grand Forks, who has devoted much time from his business interests, and thereby contributed largely to the maintenance of law and order in the state.
Elizabeth Preston-Anderson, who has been president of the Woman's Christian Temperance Union since statehood, always attended the legislative sessions, where she worked without cessation, night and day, to prevent the repeal of the law, or a passage of a re-submission amendment to the constitution. She secured also much of the additional legislation which tended to strengthen the prohibitory
473
EARLY HISTORY OF NORTH DAKOTA
law, and aid in its enforcement. The friends of temperance everywhere owe a debt of gratitude to this fragile little woman who successfully combated every movement of the liquor forces, which endeavored in a number of legislative ses- sions to modify the law by striking out its imprisonment provisions, and submit a constitutional amendment repealing prohibition.
AMENDMENTS
Among the amendments to the law was one passed in 1895 as to "Druggists' Permits." The county courts were authorized when petitioned by twenty-five reputable freeholders to grant a hearing upon notice to the public and if no protest was filed or objection made, to issue a permit upon the applicant filing a bond in the sum of $1,000, conditioned that he would sell and dispense intoxicating liquors according to the provisions of the prohibition law.
Then a statute was enacted defining intoxicating liquors so as to include any mixture that would produce intoxication and any liquors containing certain ingredients were to be considered intoxicating. But any liquors containing less than 2 per cent of alcohol by volume were declared non-intoxicating.
In 1903 under the administration of Governor Elmore Y. Sarles, a law offering a reward of $50, for the arrest and conviction of any violator of the prohibition law, was enacted, the reward to be paid by the county where the offense was committed. The results obtained under this law were unsatisfac- tory and it was repealed in 1909.
During the administration of John Burke as governor, the seizure and con- fiscation of liquors, either with or without warrant was authorized, providing, however, that this law should not apply to registered pharmacists. The publi- cation and registration of the Federal special tax receipts was provided for and the importation of unusually large amounts of any liquors, wines or beer, was constituted presumptive evidence that the importation was a violation of law ; soliciting orders for intoxicating liquors was declared unlawful and pun- ishable as a misdemeanor. The owner of a building where intoxicating liquors were kept for sale and sold as a beverage was declared liable for its unlawful use. The issuance of druggists' permits was taken from the County Court and lodged in District Courts. Application was to be made and thirty days' public notice of hearing on the application were prerequisites of granting a permit, but physicians were permitted to prescribe liquors in cases of emergency, pro- vided, however, one-half pint was prescribed for one sale and one delivery. Liquor advertising in any form was declared unlawful and the use of liquor . on passenger trains and its use in any state institution forbidden, and the giving away and distribution of liquors to be used as a beverage was also declared unlawful. At this time the keeping of a place where any intoxicating liquors were sold was in a large portion of the state entirely suppressed, but the lawless element continued the sale of intoxicating liquors, especially during the harvest season, by hawking it in satchels, and from the pockets of overcoats, and in the administration of Governor Hanna, this system, properly known as "bootleg- ging," was declared a crime, punishable by imprisonment in the penitentiary for a period of six months to a year. The enforcement of the law was materi- ally aided also by the passage of an act authorizing the attorney-general, his
474
EARLY HISTORY OF NORTH DAKOTA
assistants, states attorneys and their assistants, to inspect the records of freight and express companies, and by providing a penalty for receiving or receipting for liquor in a fictitious name.
THE COURTS ACT FAVORABLY
The District courts of the state have consistently and uniformly upheld the law and meted out severe punishment to offenders. The Supreme Court has construed the law liberally and has held as constitutional all statutes passed to aid in its enforcement, except the law providing for the appointment of tem- perance commissioner, who had been given the powers of an assistant attorney- general, and of a states attorney. The Supreme Court holding in that case that such police powers were conferred exclusively by the constitution upon the attorney-general and states attorneys, and the attempt to confer these powers upon a commissioner was in violation of the constitutional provision.
It is not, however, within the purview of a historical article to analyze and comment upon the different provisions of this law. It is sufficient to say that for a quarter of a century it has stood the test of the courts where it has been fiercely assailed from every legal standpoint. Its constitutionality is now unquestioned, and its procedure is universally accepted as a proper and reason- able exercise of the police power of the state. It stands as a monument to the legal learning and the ability of Judge Charles A. Pollock, the father of the prohibition law.
In connection with the above this writer called upon Judge Pollock for a statement of his present views in relation to the effect and enforcement of the prohibition law. The following is his reply :
"FARGO, August 7, 1915.
"Col. C. A. Lounsberry, "76 New York Ave. N. E., "Washington, D. C.
"My Dear Colonel: In response to your favor of the 3d will say that I am sending you under another cover a copy of my Manual of the Prohibition Law of the State of North Dakota. The first chapter you will see is devoted to a short history of the law, and I believe will cover generally what you want. Mr. Hamilton spoke to me recently at Grand Forks concerning the matter, and I called his attention to where he could get a similar book.
"In that book I made very little comment upon the personal matters involved. I might have added that the pens with which the law was signed were given to me and I sent them to my mother, Mrs. John Pollock, then living at Clinton, Iowa, as a Christmas present, giving her a life lease of the same. Upon her death, twenty years ago, they were returned to me and are now in my pos- session and I expect to turn them over to the historical society of the state. It is quite important to notice that only one vote was cast against the bill in the House and eight in the Senate.
"In addition to what was said in that connection, it might be well to note that immediately upon entering statehood and the passage of this law, the courts were compelled to wrestle with all questions growing out of its constitu- tionality, and certain matters with reference to statutory construction which
475
EARLY HISTORY OF NORTH DAKOTA
would suggest themselves to the attorneys who were attempting to get their clients out of limbo when charged with unlawful sales.
"I know something about that litigation, for I think I was connected with it all, and it is my pleasure, viewed from this standpoint and period of life, to add that it was done without compensation, since the respect and loyalty of a splendid class of citizens through all these years have conferred the highest reward.
"It has always been my theory that liquor and larceny cases should be tried just alike. Since going upon the bench I have adopted that policy. The trouble is with liquor people they want a big advantage and feel piqued if the courts do not put them in a little higher class than other ordinary criminals. I am glad, however, to say that in at least a large part of the state that notion is fast passing away. In my district we have no more trouble in dealing with a liquor than a larceny case.
"I do not believe that a person charged with the crime of violating the Pro- hibitory Liquor Law should be convicted unless the evidence is sufficient, and very frequently I have been called upon to dismiss actions where the proof was not of the high grade required by law to convict. Sometimes the temperance people make the mistake in expecting the courts to convict without evidence or upon hearsay evidence. No successful enforcement of law can be ever accom- plished upon that theory. This is an age when people are demanding a 'square deal,' and they ought to have it if possible.
"You have no idea what an improvement has come to our twin cities-Fargo and Moorhead-by the extermination of the saloons in Clay County. During the month of July, 1914, there were 439 arrests. During the month of July, 1915, there were but 31, and 28 of those occurred the first two days in July, which really constituted a part of the final wind-up of the saloon system. In other words, for the month of July, after July 2d, there were only three arrests. You probably know that during the last year in Moorhead there were over four thousand arrests.
Need help finding more records? Try our genealogical records directory which has more than 1 million sources to help you more easily locate the available records.