The Dickinson press., 1900-09-15
New Law Point.
Judge Winchester Decides that lnjunct on
Prosecution Must Have Approval
Of State Officers,

Judge Winchester has dismissed the
actions brought by the state enforcement
league, through Attorneys Bosard & Bos-
ard of Grand Forks, against Leonberger
& WEIGH, Frank kim, Mike Mckinley,
Ed. J. Berry and Dave Brown, of Dick
inson. for violation Of the prohibition law,
and set aside the injunction issued
against them and their property in. Me
cases. The dismissal of the cases was
ordered upon the motion Of ATTORNEY
Gregory of Dickinson and anew interest
ing decision with regard to the prohibit
ton law is made by Judge Winchester in
dismissing the cases. He holds that tn,
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 at
torney of the county in which they are
brought or Of the attorney general of the
state, and that actions brought by citizens
through other attorneys, without the ap-
prevail or consent of the states attorney
or the attorney general are not properly
brought. The cases brought at Dickin-
son were brought by c. G. Simpson,
through Bosard & Bosard of Grand
Forks. Judge Winchester holds that
there is no authority of law for the bring
ing Of these cases by Bosard & Bosard,
without the approval or consent of the
regularly elected and constituted attor-
neys for the state.
The effect of this decision, if upheld
by the supreme court, is that the enforce
ment league cannot go into any counties
of the state, upon the relation OF spoilers,
and bring cases against persons or prop
ertv through a firm of private attorneys,
as is present being done. Bosard &
Bosard are the attorneys for the league,
and through them the league is bringing
actions in all parts of the state, styling
themselves and signing themselves at
torneysG for the state of North Dakota.
Judge Winchester holds that under the
law this is an unwarranted assumption of
the authority and prerogatives of the
regularly elected legal officers of the
state, and that the state is not properly
brought into an action without the az
prevail or consent of these regular officers.
The law provides that "the attorney
general, his assistant, the states attorney
or any citizen of the county where such
nuisance is kept or maintained may main
tain 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 at
torney, attorney general or his assistant.
This view is further strengthened by sec
ton 1903, which states that "if any prose-
cution begun by the states attorney, the
attorney, general or his assistants or by
a citizen with the written consent or ap-
proval of the states attorney or attorney
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 brough by
citizens under the provisions of the chap.
ter are to brought with the written con.
sent or approval of the states attorney
or the attorney general.
The matter will probably go to the
supreme court. If the decision is sus.
tanned it will mean that attorneys from
any part of the state cannot go into an.
other and bring actions in the name OF
the state, entailing costs upon all coun.
ties without the approval or sanction OF
the states regularly constituted legal
representatives as is at present being
done by Bosard & Bosard of Grand
Forks for the enforcement league.