The Fargo forum and daily republican., 1916-10-18
DECISION OF THE
SUPREME COURT

The state of North Dakota. ex rel. D.
H. Macarthur. plaintiff, VS.. Fred McLean
Joseph M. Kelly and the state central
committee of the Democratic parSty IN IN
/. Where the issuance of an original
and prerogative writ rs asked OF tne
supreme court on the ground that the
matter is of public concern, and the at
torney general refuses to bring the
proceedings, but expresses a WiIIlng-
ness that they shall be pro9gnt' tns
light as IL there, had been merely a re-
fusal on the part of the attorney gen.
eral. III, -.
fuse to issue it's original writs where
matters of public Importance are con-
cerned merely because the attorney
general refuses to himself bring or
5. one of the tests of the jurisdic-
tion of the supreme court Where tns
issuance of an original writ Is prayed
for but the attorney genera htSsr reiuses the se
Individual relator Is in fact a necessary
party or a mere incident and Wnether
after all it is public injury whicn Is
sought to be remedied or prevented and
involves the franchises and preroga-
4. The right to the untrammeled ex-
ercise accordins to law OF me et9gctfv strictyv
speaking a right or franchise OF the
indiyidual citizen rather than Of the
collective and sovereign state, ana even
| not only publici juris, but one which
ultimately affects the self-governtng
| franchises and prerogatives OF the soy
ereign state itself and can, In the dis
cretion of the supreme court, ana IN
| exceptional cases, be safeguarded py
the issuance of it's prerogatiye writs.
S. A public office is public position
to which portion of the sovereignty
| of the country either legislative, execu-
I tive or judicial attaches for the time
| being. and which is exercised 1or tne
beneft of the public. The chairman OF
a state central committee possesses no
such authority and is, therefore, not a
public officer.
6. The writ of injunction contem-
| plated by section 81 of the constitution
Of North Dakota is correlative with the
writ of mandamus. the former issuing
to restrain and the later to compel &C
tion, and is not limited to cases invoiy-
ing civil or property rights, but may bt
resorted to in all cases Affecting The
sovereignty of the state, Its franchls'
or prerogatives or the liberties OF th'
people. 1t includes within its scopt
and protection political as well as civi
or property rights and may oe issued
under a proper showing and IN the dis
cretion of the court. even at tne s4it Q
opposition of the attorney general him
I. The courts will not assume ;
fRreater cOnIIOl Oh Va ouROiNioioh oNO
lpurely political matters than can clear
tiy be deemed to have been conceded t
them by the express provisions of tn
statutes and of the constitution.
8. The majority of the members of
political state central committee ha
the inherent power to depose or elect
chairman at any time, and the suprem
court will not Issue it's high preroga
! | tive writs in order TO bring about tha
. which voluntary political action ca
O. Section $50 of the compiled law
of 1918 examined and held not to max
! membership in the state central com
mittee prerequisite to its chairmanshir
|, Original application to the suprem
court for the issuance of it's preroga
/ tive writs in order to GUST one Ere
| IMcLean from the position of chairma
Of the Democratic state central com
, Application denied. Opinion OF tn
court by Bruce. ]. Fisk. C. j. an
Burke, j., did not participate, Hon. "
Il. Nuessle, judge of Sixth judicial dis
trict, sitting in their stead.
/ Engerud, Holt & Frame. Of Farg,
, lattorneys for petitioner; Bangs. Hamil
/ ton & Bangs, OF Grand Forks, and Hal
! vor L. Halvorson. of Minot, attorney
for defendants.