The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1916-11-28
B|ROz[lL PROBING
Member of University Faculty
Here Today TO Look Into
Right To Take Job
ROBINSON TAKES ISSUE
WITH FISK ON QUESTION
Fargo Member Of Supreme Court
Notes Precedent 70 Establish
His Claims


The supreme court Of North l,akota
may have three justices too many
next Monday.
On that date the justices elect nam.
ed at the recent general election: J.
r. Robinson, II. H. Grace and Luther
E. Birdzell, plan to come to Bismarck
to claim their seats on the supreme
bench. On that same date the re.
tiring justices-C. J. Fisk, z. +. Burke
and E. 3. Goss-will be sitting. The
former will contend that their six.
years terms date from the first Mon.
day in December: the latter claim
they were elected for six years from
the first day Of January, 1910, and
that their terms do not expire until
the 31st day Of December.
Old Provision Dug Up.
There is involved principle, prece'
dent and one months salary amount.
ing to $41G and some cents.
In support Of their contention, the
justices-elect quote section 80 OF the
state constitution, which provides that
justices of the supreme court shall
serve from the first Monday in De-
cember following their election.
The retiring justices assert that
this provision was embodied in the
constitution as an emergency meas
ure, when the state WAS admitted in
1889 and as means OF assuring that
~. II ~,t rrrSr Ss~ tSaySV
two; months without a supreme court
after the general election was held
that fall.
M Justices Fisk, Burke and GOss con.
tend there is nothing in established
precedent or custom which would
warrant the step contemplated by the
justices.elect. The justices.elect.
claim there is, and their position is
stated in the following letter from J.
E. Robinson:
Charles J. Fisk,
Bismarck, N. d.
Dear Judge:
"Your favor regarding the time for
the next supreme court judges to
qualify and take Office duly received.
and submitted to Messrs. Birdzell and
Grace.
"'You claim that by custom and
statute, the time is the first Monday
in January We claim it is the first
Monday in December, and that it is
controlled by the constitution. which
fixes the latter date.
WaiIin Served From December.
Custom consists of only a few sin.
gle instances Justice Wallin first
took Office for seven years, and then
for six years, and his second term
ended on the first Monday Of Decem.
her, 1902. THE first three judges were
elected to succeed themselves, and
the same is true of several other
judges.
"YOu may know the judge who was
elected in 1906 to fill vacancy caus.
ed by the resignation Of Judge Young.
He held the Office Of district Judge
and did not care to resign until Jan.
uary l, 1907, so that Governor Burke
might appoint his successor.
Precedent Noted.
Judge Cochrane was elected as the
successor Of Judge Wallin. They were
bosom friends, and Judge Wallin may
have served month on the term of
Judge Cochrane.
when Judges Burke and Goss we're
elected, think they were each on the
district bench, and it is possible that
they had some business to detain
them. But, Of course, the fact that
a Judge does not choose to qualify
on the day his term of Office CON-
mences, does not lengthen out his
term; if it did, then no one would
have any means of knowing by law
the day when the term commences.
| am sure there is no evidence OF
custom that amounts to anything.
What Statute Provides.
''It is true, the statute plainly states
that except as otherwise provided,
all state officers shall take Office on
the first Monday in January. But in
regard to the supreme court judges,
we thing, the constitution does 9th
erwise provide. The first Monday of
December, 1889, is the first milestone.
1t is the starting point. and it is not
far away. and no Judge has ever been
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