The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-12-22
important Decisions BY
N. D. Supreme Court
constitution OF North Dakota Does Not Confer Right to Pre-
lfminary Examination Maloney Dsbarment
Case Is Reversed

Opinion of the court by Fisk, J., all
concurring, Ellsworth j., concurring
specially.
The Maseney Case.
In the matter of the proceedings for
the disbarment of William MaIoney
an attorney at-law.
Held; That the findings of the
trial court in favor of the accused on
certain charges, are sustained bv a
preponderance of the evidence NUT
the charge that he has been guilty of
disrespect to the court in connection
with proceedings in certain trans
action set out in the evidence, is not
supported by any evidence regarding
that transaction.
Held: Further, that the charge Of
attempting to deceive the court in
violation of his duty as an attorney
is not sustained by that degree of
clearness which justifies the court in
suspending an attorney, particularly.
in view of the accused, explanation of
the transaction and the absence of
evidence in direct conflict with his
version.
(Syllabus by the court.)
Appeal from district court will
liams county from a judgment sus-
pe3ding William Maloney from the
practice of law for ninety days and re-
curing him to make application and
proof of compliance with the judg-
ment Of suspension before he can be
reinstated. Burr, special judge. Re
versed.
William Maloney, for appellant.
A. j. Bessie, Edwin A. Palmer. and
Frank Fisk for prosecution.
Opinion of the court by Spalding, J,
all concurring.
The School Superintendent Case.
Iva o. Jenness, appellant, VS.. s. II.
Clark respondent.
/ Section 764 r. c., 1905, which pre-
scribes that at each general election
there shall be elected in each county
a superintendent Of school whose term
snail be two years land until his sue
cessor is elected and qualified" ia a
and valid enactment.
2. Following the rule announced in
state VS.. Fabrick, Is N. d. "a. held.
that under such statute the regularly
elected incumbent of the Office is en-
tltled to hold the same until his cue
cessor is legally elected and qualified.
3. "A person who is Ineligible to hold
4 public office cannot be elected there
to, and his election is a nullity. The
word elected as used in section 1854.
X C., signifies an election of a quail
led successor to the incumbent
4. The incumbent of a public Office
who has the right to hold over until
his successor is elected and qualified
has such special interest as enables
him to maintain an action under the
provisions of chapter 25, code civil pro. |
sections 7349 ct seq. r. C.. 19O5l
against one who intrudes himself int5
such office, unless such right has been
lost or waived in some manner either
by the voluntary surrender of the Of
ace or by some other quiYalnt act.
(Syllabus by the court.)
Appeal from district court, oliver
county. Crawford, ].
From a judgment in defendants
'avor, plaintiff appeals. Reversed
Hyland & Nuessale, for appellant.
Reimestad & Mccormick, for re-
spondent.
Opinion of the court by Fisk, J., all
The Winbausr Case.
State Of North Dakota, plaintiff and |
respondent VS.. Joseph Winbauer. de- |
endant and appellant.
l. A preliminary examination be-
ore committing magistrate. or a
waiver thereof, is necessary before the
Hing of an information in the dis
riot court on the charge OF commit |
ng an offense against the criminal |
avs Of the state, unless such offense
$ charged to have been committed /
Turing the continuance Of a term. Of
such court, barring the exceptional /
ases enumerated in Section S7s1. r. C.
sos.
2. On the arraignment of a person
hs.rged by information only with hay-
ng committed criminal offense
vhen term of district court was
ot in continuance and not included
the exceptions referred to, the
roper procedure is by motion to set
side the information.
8, Jan. IL. 1910, the 6efen dant
vaived preliminary examination be-
ore a magistrate on complaint
harging him with keeping and main
aiming common nuisance In vio-
Ltion of the prohibition law at divers
nd sundry times since the FIRST day
July, 1909, In certain described
remises and was held to the district
ourt on such charge. May 5. 1910.
n information was filed in district
'urt during a term which commenced
lay 3, 1910, charging the same person
\