Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1900-09-14
CANNOT BRING CASE
Judge Winchester Decides that In
junction Prosecution Must Have
Approval of States Officers.
Promiscuous Injunction Cases Brought
Without Proper Authority Not Con-
Templated by Law.
Three Cases From Dickinson and Two
From Mandan Dismissed on
this Ground.

this Ground.
Judge Winchester has dismissed the
actions brought by the state enforce
ment league, through Attorneys Bos-
ard & Bosard of Grand Forks, against
Leonberger & Witch, Frank kim and
Ed ]. Berry of Dickinson, for violation
of the prohibition law, and set aside
the injunctions issued against them
and their property in the cases. The
dismissal of the cases was ordered up
on the motion of Attorney Gregory of
Dickinson and a new and interesting
decision with regard to the prohibition
law is made by Judge Winchester in
dismissing the cases. He holds that
the prohibition law of the state does
not contemplate or intend that actions
for the abatement Of nuisances under
the prohibition law shall be brought
without the approval or consent of the
states attorney of the county in which
they are brought or of the attorney
general of the state, and that actions
brought by citizens through other at
torneys, without the approval or con-
sent Of the states attorney or the at
torney general are not properly
brought. The cases brought at Dick
inson were brought by G. G. Simpson,
through Bosard & Bosard of Grand
Forks. Judge Winchester holds that
there is no authority of law for the
bringing of these cases by Bosard &
Bosard, without the approval or con-
sent of the regularly elected and con-
stituted attorneys for the state.
The effect of this decision, if upheld
by the supreme court, is that the en-
forcement league cannot go into any
counties of the state, upon the relation
of spoilers, and bring cases against per-
sons or property through a firm of pri-
vate attorneys, as is at present being
done. Bosard & Bosard are the attor-
neys for the league, and through them
the league is bringing actions in all
actions in all parts of the state, styl-
ing themselves and signing themselves
attorneys for the state of North Da-
kota. Judge Winchester holds that
under the law this is an unwarranted
assumption of the authority and pre-
negatives of the regularly elected legal
officers of the state, and that the state
is not properly brought into an action
without the approval or consent of
these regular officers.
The law provides that "the attorney
general, his assistant, the states attor-
ney or any citizen of the county where
such nuisance is kept or maintained
may maintain an action in the name of
the state TO enjoin the same" 1t is
the opinion of Judge Winchester that
it is the intent of the law that, while
an action may be maintained by any
citizen of the county, it must be done
through the states attorney, attorney
general or his assistant. This view
is further strengthened by section 1903,
which states that eff any prosecution
begun by the states attorney, the at
tOrney general or his assistants or by
a citizen with the written consent or
approval of the states attorney or at
torney general, under the provisions
of this chapter, shall fail, the costs of
such prosecution, unless otherwise
specified, shall be paid by the county
in which such prosecution or suit was
begun" Here the inference is that
actions brought by citizens under the
provisions Of the chapter are to be
brought with the written consent or
approval of the states attorney or the
attorney general.
The matter will probably go to the
supreme court. If the decision is
sustained it will mean that attorneys
from any part of the state cannot go
into another and bring actions in the
name of the state, entailing costs upon
all counties without the approval or
/. sanction of the states regularly con-
stituted legal representatives, as is at
present being done by Bosard & Bos-
ard of Grand Forks for the enforce
ment league.
This morning Judge Winchester
dismissed the cases of the state, ex rel
w. E. Martin, against Tobin & Drury
and Peter Schantz. The grounds fol-
dismissal were the failure of the plain
tiffs to serve true copies of the papers
upon the defendants and the fact that
the cases We're brought without the
consent or approval of the states at
torney or the attorney general.
This afternoon Judge Winchester is
hearing the case of Schaffner VS.. Mer-
Ger county. The county has seized
some of the plaintiffs horses for taxes
and the plaintiff seeks an injunction
to prevent the selling of the stock, al.
leging that the taxes are Illegal. he.