Courier Democrat. (Langdon, N.D.) 1891-1920, 1902-01-02
FISK IS REVERSED.
Trial Court in North Dakota Exceed
ed Its Authority.

The supreme court has handed down
q decision in one 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 drug store in
Cavalier county, ana in 1898 action was
brought against him for maintaining
nuisance, under the liquor law, it being
alleged that the prohibition law was
being violated. The action was brought
by F. j. McClcry, as assistant attorney
general Of the state. After the COM
mencement of the action, Bosard & b.
sard, attornayes for the state enforce
ment league, were employed by private
persons to assist with the prosecution.
The action came on 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 it could not be abated in a court
If equity.
L TIC SdSC was clppCdlCo " lliE ia III C-.AS
court, where the judgment of the lower
court was reversed, and judgment en-
tered in accordance with the prayer Of
the plaintiff, which meant that the Of
| Tending liquors and appurtenances for
their sale be destroyed, as the law pro-
yides. The order was handed down by
the supreme court, whereupon the de-
| PENDANT presented a petition to the dis
trict court that, after the payment of
| the costs, he be permitted to file 4 bond
to obey the law in future, and judg-
ment 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 several nice
questions concerning the prohibition
law, among them whether the filing of
such bond could abate such judg-
1nent as entered by the supreme court;
and another as to whether Bosard &
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 or the
states attorney to appear for the state
in all these actions, and prohibiting pri-
vate attorneys, such as Bosard 4 30
sard, from bringing actions for the
state enforcement league in the name
of tn estate. On both of these points
the defense loses its case. The court
holds that BoSard & Bosard were regu-
larly employed as attorneys for the
state, and that they We're concerned
with the action before the 1891 act was
| 1,o r,,,o,-ici0oS of
that statute We're prospective, and not
retrospective, they cannot now be smut
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, ana 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, unCer this conclusion, the
defendant is not entitled to the pr1v1-
iege of paying costs, giving bond and
having the premises released. Regard
ing Judge Fisl1's action IN not comply
ing with the first order of the supreme
court, the higher court says:
"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 on
such permission, the defendant was al
lowed to interject into the case ques-
lions and considerations of law and
fact which were not brought to the at
tention of this court in any manner,
and upon which this court has never,
until the present appeal, had an oppor-
turity to pass or TO make an adjudica-
ton. Upon sucn new matter so inter-
jected the trial court has assumed the
right to enter judgment in the very
teeth of the order sent down. We con-
fess 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 cases such as this, the dis
trict court in entering judgment pur-
suant to an order transmitting to it,
acts Enthusiastically. unless the court di-
reefs, in express terms that further
proceedings be had in the district court.
sThe 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
| pealeG from being reversed.
| nDI@