The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1910-01-13
COURT SPLITS ON
Big DECISION
AND FISK DISSENT FROM
OPINION WRITTEN BY cARMoDY
ALLOWING ANDY MILLER TO
ENTER GRAND JURY ROOM
sPALDlNc AND ELLSWORTH
WITH cARMoDY.

In a decision written by Carmody
and from which Chief Justice Morgan
and Judge Fisk dissent, the supreme
court of North Dakota grants to At
torney General Andrew Miller the right
to enter a grand jury room, examine
witnesses and lay before grand jury
any matters relating to the violation of
the prohibition law. Judge Spalding
and Judge Ellsworth voted with Car
mody on the decision carrying it by a
bare majority.
Following is the syllabus OF the case:
In the supreme court, state OF North
Dakota, October term, 1909. The
state of North Dakota, ex rel. Andrew
Miller, attorney general, plaintiff. VS..
the district court of Burleigh county,
sixth judicial district for. the state of
North Dakota, and Hon. W. FL. Win
chester, judge, defendants.
]. Section 9372, revised codes OF 1905
relating to the prohibition law, pro-
vides, among other things, as follows:
Whenever the states attorney shall
be unable, or shall neglect or refuse
to enforce the provisions of rllis chap
ter in his county, or for any reason
whatever the provisions of this chap
ter shall not be enforced in any county,
it shall be 7the duty of the attorney
general to enforce the same in such
county, and for that purpose he may
appoint as many assistants as he shall
see fit, and he and his assistants hall
be authorized to sign, verify or fill all
such complaints infoFmations, petitions
and papers as the states attorney is
authorized to sign, verify or file, and
to do and to perform any act that the
states attorney might lawfully do
or perform;
Held: That the attorney general and
his assistants have the right to appear
before the grand jury and examine
witnesses and lay before 1t anv matters
relating to the violation of the prohi-
bition law.
2, Section 24g4. revised codes Of
1905, provides among other things. as
follows: 1.-THE attorney general or his
assistants are authorized to institute
and prosecute any cases i'm which the
state is party whenever in their
Judgment 1T would be to the best in
terests of the state to do So"
Held: That the attorney general
has the right to appear before the grand
jury at any time when in his Judgment
he deems it for the best interests of
the state so to do, and thar each of his
assistants has the same right.
3. The right of the attorney general
and hisassistants 20 go before the grand
jury, is not affected by section 1929,
revised codes of 1905, allowing only the
states attorney to appear before the
grand jury for the purpose of giving
information or advice relative to any
matter cognizable before them, and to
witnesses before them
whenever he thinks 1t necessary, and
no other person to be pres
emit during the sessions OF the grand
jury except the members and witness
actually under examination.
(Syllabus by the court)
This Is an application by Andrew
Miller, attorney general, for a writ of
certiorari to the district court of the
Sixth judicial district and the Hon. w
III. Winchester judge.
Writ awarded.
Andrew Miller for plaintiff, r. N.
Stevens. Newton g. Dulian, OF. Fl. Reg
lister and r. r, Mockler. OF eounsel)
for defendants.
Opinion of the court by Carmodv.
Judge. Spalding and Ellsworth. Judges.
Morgan. C, j., and Fisk,
j., dissenting,