The Fargo forum and daily republican., 1916-12-11


Code OF 1877, which, by it's terms, fixed
the date of the commencement of the
terms Of all state Officers upon the
first Monday in January, succeeding
their election.
4. The reference in Section 92 of
the constitution to the tenure of office
OF the Judges OF the supreme court and
thelr holding such offices from the first
Monday in December, 1854, had refer
elected.
B. Judges OF the supreme court are
state officers, and ali the members
thereon, save the first three, begin
their terms of office on the first Mon
day in January following their election
under Section 67s. Compiled Laws
6. The construction of the consti-
tuition as here declared while never an
hounced in contested case, has for
twenty -four years been followed by
the judges Of the supreme court in en-
tering upon the discharge Of the duties
! OF their respective offices. This uni
form rule of action, acquisced in
without single exception for SO long
period, constitutes practical con-
cannot now be avoided.
T. The court takes judicial notice
of the fact that Judges -elect Robinson,
| IGraCe and Birdzell, were elected and
will be entitled to take their seats on
the first Monday in January. 1917. The
JtaCt whether or not a certificate of
election has been issued to them, is
therefore immaterial, However. if is
sued. no administrative officer has
power, by giving a certificate to that
effect, to cause term of office to be-
Igin prior to the time when so provid-
ed by the constitution.
Per curiam: The above entitled
matter was initiated by an order to
show cause issued by the following
named persons, constituting the su-
preme court of the state. viz: Andrew
A. Bruce, as acting chief Justice, to-
gether with Associate Justice A. NJ.
Christianson, and District Judges w.
l.. Nuessle, James M, Hanley and
Chas. A, Pollock. At the time of the
issuing the order to show cause the
question of the right Of the supreme
court, as thus constituted to sit, was
considered and upon that question an
opinion was written signed and filed
by the five judges above named (State
ex rel. Linde v, Robinson, ct all
! N. D., - N. w. The order
to show cause thus issued, in sub
stance. required all the respondents
above named to appear before the
supreme court on Thursday, Dec. Z,
1916, and present their respective
claims with reference to their tenure
OF office of justices of the supreme
court, between the first Monday in
December. 1915 and the first Monday
| Of January 1917. Thereafter Justices
Bruce and Christianson, entertaining
doubts as to the propriety of their
further sitting and deciding upon the
merits involved in the proceeding,
! asked to be relieved from acting
whereupon the remaining members
of the court as thus constituted, and
without any suggestion from Justices
Bruce and Christianson called to COM
plete the complement of the court w.
| G. Crawford, judge of the district
| court of the Tenth district and X. e.
Leighton, judge OF the district court
of the Eighth district. Upon the return
day the court last above named as
| sembled, and, with the exception of
Judge James M. Hanley, appeared in
| the court room of said court as consti-
tuting a majority of the supreme
court of the state of North Dakota
then organized and ready to conduct
the business of the same. There were
also present John p. French, the mar
shall Of said court, and r. d. HosEins,
the clerk thereof. Court was opened
Pin due form. sSEs r..
Upon this matter being called for
hearing, Messrs. w. G.. Lemke and
William LANCER appeared specially, as
counsel for Messrs. Robinson, Grace
and Birdzell, whom for convenience
hereafter in this opinion we will desig-
nate as judges elect; James e. Robin
son and r. H. Grace appearing also
in person; L. E. Bir1zell not appear
ing. The attorney general, II. J. Linde,
appeared for the plaintiff, stating the
reasons why he had brought the &C
tion; and Judges Fisk. Goss and Burke
appeared generally, each for himself
respectively, making no objection to