Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-05-30
CAN'T HOLD OUT PAY.
Supreme Court Passes on Mcintosh
County Case, Involving States
Attorneys Duties. Z
District Court Cannot Hold Out Pay
When States Attorney is Able
to Perform Duties.

The supreme court, in the case of
the state of North Dakota ex rel. A. w
Clyde VS.. w. S. Lauder, as judge of the
Fourth judicial district and Paul
Knetchmar, clerk of the district court
of Mcintosh county, has decided that
a district judge cannot appoint an at
torney to prosecute an action in place
of the states attorney of a county and
make an order that the compensation
be deducted from the salary of the
states attorney, where the states at
torney is present and bodily and men,
tally able to prosecute such case. The
opinion in the case was written by
Justice Wallin, and the syllabus fol-
lows: /
Certiorari Original Proceeding. w.
O., who vas the defendant in a certain
criminal action instituted in Mcintosh
county, after a. preliminary examina-
tion, wa held to answer in the dis
trict court for a public offense. The
states attorney of said county, not de-
string to prosecute the defendant fur
Their, filed his reasons therefor with the
clerk of the district court pursuant to
the provisions of section 1884, Revised
Codes. The district court overruled
said reasons and by an order entered
in the minutes declared that it did not
deem the states attorney a proper per-
son to prosecute the criminal action
in question and by a subsequent order
entered in its minutes appointed n
L, an attorney at law, to act as prose-
cutor in said criminal action. BY a
still later order, reduced to writing and
filed with the clerk of the district court
after court had adjourned for the term,
the presiding judge directed the auditor
of said county to deduct from the sal
airy of the states attorney the sum Of
one hundred dollars, which amount
was the sum fixed by said order as the
compensation of l. for prosecuting the
action. In said last mentioned order
the grounds for deposing the states
attorney and for appointing L to pros
ecute are stated as follows: "And
said attorney in open court stated that
in his opinion the said dependant
should not be prosecuted and refused
to proceed with the prosecution Of said
cause" etc. .
Held, conceding for the purposes of
this proceeding only, that the above
quoted grounds of the order made by
the trial court, requiring the county
auditor to deduct n hundred dollars
from the salary of the states attorney,
are TRUE and %conceding that the states
attorney wilfully refused to file an
information and prosecute said GRIM
inal action, that such order was made
without authority of law and the same
is null and void. There was a states
attorney for Mcintosh county and he
was not absent from court o was he
unable" by reason of bodily or men
tai disability to perform the duties of
his office" Therefore none of the
statutory conditions authorizing am
order making deductions from the sal
airy of a states attorney existed in this
case. See section 1886, Revised Codes.
Held, further, that a refusal to pros
ecute or wi1lfull misconduct in office
will not justify any such order in a
case where the states attorney is pres
ent in court and able to perform his
official duty. f
Held, further, that the order depict
ing the salary of the states attorney is