Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-11-01

oner had heen in custody Of the sheriff
since the Judgment Of the supreme court,
and in that case, the time for which he
was sentenced had elapsed, and the pris.
oner was entitled to his liberty.
The chief justice in granting the mo.
ton of the attorney general said:
We have had this motion of the attor.
ney general under consideration and
it presents somewhat curious COM
plications. If all the perplexities
that are suggested should be car
ried out and argued out it would be
invested with some difficulties, but where
it is a question of personal liberty and
the petitioner is before the court seeking
his liberty by the writ of habeas corpus
and the attorney general comes in repre-
senting the officer who has the prisoner
IN custody and instead of opposing the
motion of the petitioner acaulesces in it
and makes a motion on his own behalf
and places it upon other grounds we
feel as though We ought as a rule to
/, grant such a motion as that in the inter-
est OF the liberty of a citizen, but in doing
SO 10 this case we desire to say that we
shall act upon the advice of the attorney
general, who states that he has investi-
gated the question and that the writ is
IN his Judgment functus officio by reason
OF time having run against this commit
ment. His opinion is that time has run
against the commitment itself and that
no valid writ could be issued upon the
commitment. We have not made any
special investigation of that question
and we do not intend to tie ourselves up
in this case by anything we may say IN
this particular case. It must rest on its
W grounds, but we shall hold with the
attorney general that the writ of com.
mitment is functus oficio, for the pur-
poses of this case. We do so all the
more willingly because we feel as though
this court was being used to some ex-
tent for the purpose Of determining
questions in which the petitioner
has no personal interest whatsoever.
We do not wish to censure counsel but
we do wish to state that this court will
not willingly permit it powers to be
brought into use for Interior purposes
brought into use for one purpose upon
the papers, but for another purpose ly-
ing behind the papers. We are aware OF
the fact that there is a very serious
grievance which these property owners
have. That grievance is involved in the
original action, and this petitioner has
no interest in that grievance. He seems
to be here in a kind of passive state
partly coerced by a sense of duty, and
also largely coerced by a desire for a pei
diem, which he believes certainly he
will receive for all the time he is in
Jail, and therefore we consider this case
peculiar, and are not disposed tt
crlticlse or question too closely
law questions that might arise in thu
case on account of the peculiarities that
l have refer red to, and we shall there
fore grant the motion of the attorney
general and discharge the petitioner
from custody, on the ground that thu
commitment is functus oficio.
AS to costs, we do not find on exami
nation of the statute that the petitioneI
is entitled to any costs; but, If he is, w
do not at this time tax them. If he il
entitled to costs under our practice h,
will have to go before the clerk.