Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1890-05-16
JUDGE WINCHESTER SUSTAINED

A
opinion in what is known locally as the
Healy certiorari case, and issued an or
der affirming the decision of Judge Win
chester-the order appealed from being
the suspension of county commissioners
Healy and Ecklund, pending the trial
and determination of the suit brought
against them by E. H. Bly, in the inter-
ests of the tax payers of the county. The
motion to quash the writ was first made
on Saturday, but this was denied and
the return to the writ was then submit
ted for the consideration of the court.
Counsel on both sides were heard and
the case taken under advisement. Mon
day morning at the opening of court the
decision that the proceedings Of the
court below in s%uspending the commits
sioners from Office were not void for
want of jurisdiction OF the part of the
lower court was handed down. The ar
guments presented by counsel for Healy
and Ecklund, the suspended county
commissioners, would seem to indicate
that the district judge in issuing the Or
der for suspension must not only satisfy
himself that there is sufficient cause for
such a procedure, but must also set forth
in his order reasons satisfactory to OPP
posing counsel that the order is correct.
This position was iterated and reiterated
until it became ~burdensome, and if there
was any force in it that could be grasped
by legal acumen it was beyond the orbit
of those whose legal ethics are confined
to the practical, common sense methods
of arriving at right results by
direct methods. It is quite
reasonable to suppose that the law Great
ing a judge and in general terms defn-
ing his duties, does not divest him en-
tirely of the power to arrive at conclu-
sions and rendering decisions without
making a diagram of the mental process
which has enabled him to come to a con-
clusion satisfactory to himself, and COM
pei him by secular demonstration to
bring it within the comprehension Of an
obtuse or prejudice attorney. AS the
chief justice observed, discretion must
rest somewhere, and why not with the
judge. The line drawn by the Healy-
Ecklund attorneys was so peculiar that
even a novice in legal lore could not help
being interested. "Give us reason on pa
per for the ORDER" howled the attorneys,
as if in his official capacity Judge Win
chester had 'afixed his hand and seal"
to an official act without reasons The
very fact of the doing carries with it the
reasons, and if they we're spread out on
folios it would not prevent any pettifog-
ger who can gain admission within the
bar of a court house from declaring they
are not Sufficient" The opinion is not a
hazard, that a weeker point is seldom
argued with more physical force than was
bestowed upon the effort to have Judge
Winchester order revoked, and it is be-
lieved that one of the attorneys knew bet
ter than he talked, for he is accredited
az being a fair lawyer, and proves himself
to be such In most cases.
It came out in the hearing, and must
have been observed by the learned men,
bers of the supreme court, that the at
torneys for the defendants, plaintiffs in
the certiorari CASEY certified falsely in
their affidavit, undoubtedly with a view
to prejudicing the court. One of the
points cited was that Judge Winchester
had denied them a hearing on the order
of suspension. This was absolutely
false. No court was ever more liberal or
charitable to the champions of a weak
and untenable cause than was Judge
Winchester in this case. The facts,
which the attorneys for the suspended
commissioners carefully and maliciously
concealed-are that the day first set for
hearing-a certain Saturday-was with the
understanding that possibly the judge
might not be able to hear the case at that
time on account of court in Mandan. It
SO happened that on the day set, the
judge was engaged in a jury trial of q
criminal case in Mandan and could not,
of course, get away. A few days later,
however the judge issued a new
order citing both sides to ap-
pear and the defendants were given all
the time they desired. The court took the
case under advisement and deliberated
on it a day or two before deciding. To
set up such a complaint in direct opposi-
ton to the facts and records in the case
was the cheapest and most contemplate
sort of business, worthy only Of the
knave and pettifoger.
The decision, although applying TO a
local case, involves a principal of great
general Importance. The people Of every
county may obtain speedy relief
from %extravagant, dishonest and corrupt
county commissioners and other
officers. The court needs only prima facie
evidence of guilt to Immediately suspend,
pending the determination of the matter
by a jury Of their peers. This decision
u;11 lo,,lf1occ. boro n rubo1ooor,o ,Geo,l