The pioneer express. [volume] (Pembina, Dakota [N.D.]) 1883-1928, 1901-12-27
The State Day BY Day.
FISK IS REVERSED.

.
FISK rs REVERSED.
Trial Court I'm North Dakota Exceed
ed Its Authority.
The supreme court has handed down
! a decision liz ons of the most Important
! liquor cases that has been before it at
the present term. the case Of the State
VS.. Donovan. an appeal from the dis
| trict court Of Cavalier county, where
Judge c., j., Fisk presided by request.
Donovan operated a drug store in
| Cavalier county. ana in 1898 action was
brought against him for maintaining u
nuisance. under the liquor law, It being
| allegeI that the prohibition law was
being violated. The action was brought
by r. ]. McClcry, as assistant attorney
general OF the state. After the com
| !nencement of the action, Bosard e Be-
sard, attornsyes for the state enforce
ment league. We're employed by private
persons to assist with the prosecution.
| The action came or for trial before
Judge Fisk, who found the material
facts to be as stated in the complaint,
| but dismissed the case as a conclusion
| Of law on the theory that the nuisance
which was found to exist, as a matter
Of fact was maintained by the defend
| ant under IL druggists permit, and
that 1T could not be abated in q court
Of equity.
The case was appealed to the supreme
court. where the Judgment Of the lower
court was reversed, and a judgment en-
tered in accordance with the prayer of
| the plaintiff. which meant that the Of
Tending liquors and appurtenances for
f1,oj la =
vides. The order was handed down by
| the supreme court. whereupon the de-
PENDANT presented petition to the dis
trict court that, after the payment of
| the costs, he be permitted to file bond
| to obey the law in future, and judg
| ment be entered abatng the action.
| This was done by Judge Fisk. and an
| appeal taken to the supreme court from
| the order.
The appeal brought up several nice
questions concerning the prohibition
| law, among them whether the fling Of
such bond could abate such a judg-
| ment as entered by the supreme court;
| and another as to whether Bosard Il
Bosard had any standing as attorneys
| for the state in the case. The latter
point was raised undtr the law passed
| at the last session of the legislature,
| requiring the attorney general OF the
states attorney to appear for the state
| i'll all these actions. and prohibiting pri-
vate attorneys, such as Bosard e Boz
sard. from bringing actions for the
| state enforcement league in the name
of tn estate. On both of these points
the defense loses it's case. The court
| holds that Bosard & Bosard were regu-
larly employed as attorneys for the
state. and that they were concerned
with the action before the 1891 act was
passed. and that as the provisions of
that statute We're prospective, and not
retrospect We, they cannot now be shut
out of an appearance.
| But there is another important point
decided regarding the prohibition law,
viz, that the provisions of the statute
allowing bond to be given for the re-
lease of the premises is restricted to
cases where the nuisance is conducted
on leasehold premises, AMI does not ap-
ply to cases where the nuisance IS
maintained by the owner in his own
premises. The court holds this to be
the intention Of the legislature, and
| finds that, uncsr this conclusion, the
| defendant is not entitled to the privf
| lege of paying costs, giving bond and
having the premises released. Regard
| ing Judge Fisll's action IN not comply
| ing with the first order of the supreme
court, the higher court says:
1.-The learned trial court has thought
| pre- per to permit the defendant to IN
| tervene in that court for the purpose OF
nenewing the litigation, and, acting on
such permission, the defendant was al
| lowed to interject into the case ques-
lions and considerations of law and
tention of this court in any manner.
and upon which this court has never.
| until the present appeal. had an oppor-
tunity to pass; or TO make an adjudica-
ton. Upon sucn new matter SO. inter
jected the trial court has assumed the
right to enter a judgment in the very
teeth of the order sent down. We con-
TESS that we are unable to concur in
this assumption of authority on the
part of the trial court: 1t is well set
tied that in cases such as this. tho dis
trict court in entering judgment pur-
suant to an order transmitting to- it,.
acts ministerially, unless the court d.
reefs, in express terms that further
proceedings be had i'm the district court.
'"The district court is directed to en-
ter Judgment pursuant to the order of
the supreme court both the order en-
tering Judgment and the ju dgment APP
pealet. from being reversed
Where the. Blame Belongs.
Responsibility for the Northern Pa
cific collision at spiritwood has been