The weekly times-record. (Valley City, N.D.) 1912-1922, 1915-12-09
Supreme Court Denies
Having Jurisdiction

Bismarck, Dec. 2.-The state su-
preme court has refused to entertain
jurisdiction in the case Of A. c. Hink.
ley of Bismarck against the tax com.
mission.
A Bismarck correspondent has the
following in regard to the decision:
The refusal of the supreme court
to take original jurisdiction when
application is made for a restraining
order against department of the
state government on the part of a
private citizen, is nothing new orl
novel, but is the fixed practice Of the
court. A. C. Hinkley,~a private citi-
zen of Bismarck, applied to the court,
through his attorneys, Newton, Dull
lam & Young, asking that an alterna-
tive writ of mandamus and prohibition
issue against the state auditor re-
straining him from paying the salaries
! VI CApCu0C0 VI CAO oCoIO IuA WILLIAM
sion upon the ground that the law
creating the commission carried an ap-
preparation and was therefore in con-
travention Of section 62 of the state
constitution.
The court ruled that original juris-
diction in the case was in the discre.
ton of the court; for that reason pre-
rogative writs can only be invoked
for the purpose of protecting other
departments of the state government
and the freedom of the people.
While Attorney General Linde al
flowed his name to be used, he did not
invoke, in the name of the state, the
interference of the court for the pro-
lection of the sovereignty of the state
or it's franchises and prerogatives or
the liberties of it's people, but allowed
the action to be brought in his name,
which has no other significance than
his permission as a private citizen.
The proposed writ might just as we'll
have read Estate of North Dakota, ex
!, rel, Hinkley, as "Ex rel. Henry j.
Linde, as Attorney General"
! The court acted in conformity with
their own decisions, the leading case
being State VS.. Mclean county, found
at page 356, II N. D. In this case
application was made for leave to file
information in the nature of quo war
|, ranto. The application was made by
a private citizen who invoked inter-
ference of the court with officials Of
Mclean, McHenry and other counties
in the exercise of their duties as pre-
: scribed by law. The court said:
In such cases, as has been repeat
, eddy held, the enumerated writs are
, not writs of right, but are strictly
, prerogative writs, and the same will
, issue only in cases of public juris,
where the sovereignty of the state, or
, it's franchises or prerogatives, or the
=, liberties of it's people are directly and
, not remotely involved"
The court then pointed out that the
, attorney general is the constitutional
!, officer whose duty it is to represent
the state and vindicate it's authority
:, and is the proper person to initiate
such proceedings whenever it be-
, comes necessary to invoke the orig
>. inal jurisdiction of the court. They
g admit that cases have arisen where
the courts for peculiar reasons per
T NIT original jurisdiction at the in
stance of the private relator, but these
y cases are few and exceptional. TIC
! again quote the language of the court
+ Ordinarily a private person who
r volunteers to champion only public
rights, and as such invokes the pre-
q rogative writs will be regarded as an
!. intermeddler. 1t appears by informa
:. ton, and more fully by the briefs OF
p the counsel on behalf of the relator
that the relator has suffered no wrongs
o peculiar to himself, but, on the con
trary, the relator appears in the case
solely as a champion of the state, ant
!. for the ostensfble purpose of protec
ting governmental franchises from
o. abuse"
q And again.
1.-THE Jurisdiction of this court ii
h primarily appellate, and that when the
,, original jurisdiction of this court il
:. invoked, under section q of the state
constitution, the prerogative powers
Of this court will only be put forth II
o defense of the state, its franchise:
a and the liberties of the people"
This is the leading case upon the
:. subject, which has been affirmed re
o peatedly by the supreme court and il
o is upon these grounds that the appli
cation of Mr. Huxley for permission
- to file information was denied.
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