Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1901-12-18
THE DONOVAN DECISION
Supreme Courts Decision in the Don
s2l.NFfsf@IEII 50
ovan Liquor Case Settles
Some Disputed Points. 4
5nldyg- 'E&FFa y
Judge Fisk Failed to Entea a Judgment
in Accordance with First Order
Of Higher Court.
Permits Defendants to .Re-enter the
Case, and Order So Permitting
Him is Reversed.

Him is Reversed.
The supreme court has rendered its
decision in one of the most interesting
and important liquor cases that has
been before it for consideration at the
present term. This is in the case of
the state VS.. Donovan, an appeal from
the district court of Cavalier county,
where Judge c. j. Fisk presided by re-
quest. Donovan operated a drug
store in Cavalier county and in the
year 1898 action was brought against
him for maintaining a nuisance under
the liquor law, it being alleged that
the prohibition law was being violated.
The action was brought by P. ]. Nc
Glory, as assistant attorney general Of
the state. After the commencement
of the action, Bosard & Bosard, the
we'll known attorneys for the state en-
forcement league, were employed by
private parties to assist with the pros
ecution. The action came on for trial
before Judge Fisk, who found the ma
te1ial facts TO be as stated in the COM
plant 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 defendant under a druggists per
INIT and that it could not be abated in
a court of equity. The case was ap-
pealed to the supreme court, where the
Judgment of the lower court was re-
verrsed and a Judgment ordered entered
in accordance with the prayer of the
plaintiff, which meant that the offend
ing liquors and appurtenances for their
sale be destroyed as the law provides.
This order was handed down by the
supreme court, whereupon the defend
ant presented a petition to the district
court that after the payment of the
costs in the case, he be permitted to
file a bond for the obedience of the law
in future. Judgment should be entered
abating the action. This was done
by Judge Fisk and an appeal taken to
the supreme court from the order. The
appeal brought up a number Of nice
questions concerning the prohibition
law, among them whether the filing
of such a bond could abate such a
Judgment as entered by the supreme
court, and another as to whether Bos-
ard & Bosard had any standing as at
torneys for the state in the case. This
latter point was raised under the law
passed at the last session of the legis-
lature, requiring the attorney general
or the states attorney to appear for
the state in all these actions and pro-
hibiting private attorneys such as Bos-
ard & Bosard from bringing actions for
the state enforcement league in the
name of the state. On both of these
points the defense loses its case. The
court holds that Bosard & Bosard were
regularly employed as attorneys for
the state, and that they were concerned
with the action before the 1901 act was
passed, and. that as the provisions of
that statute were prospective and not
retrospective, they cannot now be shut
out of an appearance in the case.
But there is another important point
decided regarding the prohibition law,
and that is that the provision of the
Statute allowing a bond to be given for
the release of the premises is restricted
to cases where the nuisance is con-
Quoted on leashold premises, and does
not apply 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 under this conclusion the de-
PENDANT is not entitled to the privilege
on coming In, paying costs, giving a
bond, and having his premises released.
Regarding Judge Fisk's action in not
complying with the first order of the
supreme court, the higher court says:
1.-THE learned trial court has thought
proper to permit the defendant to in
tervene in that court for the purpose
OF renewing the litigation and acting
upon such permission the defendant
was allowed to interject into the a
questions and considerations Of law
and fact which were not brought to the
attention 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 such 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
confess that we are unable to concur
in this assumption OF authority on the
part OF the trial court. 1t is we'll set
tied that in Eases such as this the dis
trict court in entering Judgment DIR