Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1907-06-15
HOLDS THAT PUBLIC POLICY
DEMANDS THIS DECISION BY
THE COURT.

their functions in the county named,
on the ground that the law creating
Mckenzie county was unconstitution-
al, as Supposed to section 1877 Of the
constitution Of the state, which for
bids special legislation upon the sub
ject of the organization of counties.
The syllabus of the decision is as
EfoHoWs .s- - = = - S. n.
l.. Application is made to this
court by private relator for the
issuance OF a writ in the nature of
quo warranto directing the defend
ants. who are acting as county Off
Gals Of Mckenzie county, to desist
from exercising jurisdiction and au-1
thority over the territory included in
such county, basing such application
upon the ground of the unconstitu-
tionality of chapter Is of the Laws
Of 1905. The application is resist.
Led by the defendants and also by the
attorney general.
| Held, Following the rule announc-
ed in State vs.. Mclean county, N. d.,
1856, that such Writs will only be is
sued by this court as prerogative
writs and will not be issued at the
request OF a private relator, except
in very exceptional cases
! Held, also, That the issuance of
such writs by this court is wholly dis
cretionary and that application
therefor should be denied upon the
1 grounds Of public policy. where, as
in this case, the issuance thereof
would result in no perceivable bene-
/ fit to the relator or to any other per-.
son, but would, on the other hand,
result in great dertiment to a large
number Of people and would un-
doubleday lead to much strife, con-
fusion and litigation
Application by the state, on the re-
lation of John Frish, for an original
writ in the nature Of quo warranto,
against A. r. Noble, etsal. 3;...s
4 Crawford and Burnett, and Ball
Watson & Young, for relator.
T. f.. McCue, Attorney General,
i Robert Norheim, T.. S. Becker and
Geo. a Bangs, contra.
4 Judge Fisk writes the opinion in
the case, Judge Morgan concurs and
4 Judge Spalding concurs in the re-
4 fusaI to issue the writ, but dissents
/ as to the logic Of the opinion, hold
ing that the circumstance of the case
b do not justify the court in holding
the organization under an invalid
statute, good on the ground of pub
4 lie policy. "A u. .8
The facts as stipulated are as fol-
4 low ,3S
The defendants, Noble, Bang and
Shaw, were in the month Of April
q 1906, appointed county commission.
ers in and for Mckenzie county, by
I he governor and the defendants, Dim
, mick and Millhouse were at said
! time appointed by the governor t.
| the offices of treasurer and auditor
? respectively, and that all such per
son thereupon assumed the duties o
their respective offices and acted al
4 UGH officers until January It'll, 1907
{ That all of said officers except the de
e PENDANT Shaw, who was ucceeded b.
r lone RIB. Gore, were, at the genera
q election held in November, 1906, ii
3 said county, elected to the repectiv,
offices to which they had been there
to fore appointed and they each dull,
9 qualified and entered upon the dis
q charge of their duties on January I
e 1907. since which time they hav
been the qualified and acting officer
d aforeaid. 58 ii,
b Said officers have performed al
b the duties usually performed by sue
e county officers and that during tn
year 1906 taxes were assessed, leyie
and collected in said county and TIL
= portion thereof belonging to the stat
2. has been turned over by the treas
e urer Of said county to the state i
d the same manner as taxes are collect
ed and turned over by regularly OF
ganized counties. That since the OF
n ganization Of such county, road
i have been established, indebtedness
= created and county warrants issued
e That there is now outstanding an
n lproximately 5000 Of such warran
which are held by divers person
who have taken them IN the ordinar
r course OF buiness.
q That upon the passage and approve
Il Of Chapter rs of the Laws Of 1905
4 the governor established a temporar
n county seat for said county at Alea
b ander where ali county business ha
+ been transacted as In other regular
" organized counties. That IN Ma.