The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1916-12-11
JUDGES ELECT:
MUST WAIT TILL
FIRST OF YEAR
Provisional Court Rules That Re.
firing Justices Serve Until
January
RESORT TO ARMS WOULD BE
SOLE ANSWER TO ROBINSON
Jurists Declare State of Anarchy
Would Exist Were His Con-
tentions Upheld

CenC1OuS Op1elu
Carried to it's logical conclusion,
their contention would bring US into
that singularly unfortunate state of
confusion where one body of men iE
office claimed the right to sit and an
other, not having possession, assert
ed the same right. The matter would
then have to be determined by purely
the right of possession or recourse
to physical force, where the members
OF the highest judicial branch of the
government must settle the disputed
question by the arbitrament of arms
Such a humiliating spectacle in civil
ICED society ought not to exist" is tho
finding of the provisional supreme
court of North Dakota in disagreeing
with the judges.elect in their conten.
tion that there is no tribunal in the
state which can settle the disputed
question as to the tenure of Office of
jusice of the supreme court. and in
holding that the retiring members of
that tribunal shall serve until the first
of January and that the justices select
shall take Office January l, 1917.
is 4 Supreme Court.
"This court as now constituted is as
much the' supreme court of the state
of North Dakota as though the men,
bers thereof had been elected to that
position by the people themselves, for
the simple reason that the people in
adopting the constitution said that the
tribunal as now created should be or
ganized in the form in whichtit is, in
cases where the elected and acting
supreme court judges were disquali-
fed" reads the opinion OF the provi-
siOnal court. . # a
Only One Question Involved,
Upon the whole record, therefore,
the sole and only question remaining
for decision is whether the term of
Office of the judges-elect commences
the first Monday in December 1916,
or the first Monday in January, 1917"
The courts findings are:
District judges, when called by
members of supreme court, upon re-
porting for duty are clothed, by, the
constitution with all the powers OF
justices of the supreme court, to the
same extent as though they had been
regularly elected and qualified to fill
such positions.
Territorial enactments were by the
constitution carried forward and be-
came the law Of the state of North
Dakota. The constitution was adopt.
ed in view of general statute of tn,
territory, which by it's terms fixed tho
date of the commencement of the
terms of all state officers upon the
first Monday in January, succeeding
their election. ,....
seetionee2 Defined. -
The reference in Section 80 of the
Constitution to the tenure of Office of
the judges of the supreme court and
their holding such Offices from the
first Monday in December, 1889, had
, reference wholly to- the three judges
first elected.
Judges of the supreme court are
state officers, and all the members
thereof, save the first three, begin
their terms of Office on the first Mon
day in January following their elec-
tiOn, under Section, 67S, compiled laws
of 1913 ~>' e. .''ae.' ...'''
Precedent Establishes Rule.
The construction OF the constitution
as here declared, while never an
nolnced in contested case, has for
"a years been followed by the judges
of the supreme court in entering up
on the discharge of the duties of their
respective Offices. This uniform rule
OF action, acquiesced IN without a
single exception for so long period,
constitutes a practical construction
Of the constitution which cannot now
be avoided.
Certificates Immaterial.
The court takes judicial notice OF
the fact that judges-elect, Robinson.
Grace and Birdzell were elected and
will be entitled to take their seats on
the first Monday in January, 1917. The
fact 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 certificate to that
effect, to cause term of Office to be-
gin prior to the time when so provid-
ed by the constitution.
Respects to Robinson.
The provisional court pays its re-
spects to Justice-elect Robinson in
the following paragraph:
During the course of the argument
herein, James E. Robinson, one of the
iudges-elect, threatened that upon TAX
ing their seats the judges-elect would
put aside and render nugatory the
acts of this court as now constituted,
as we'll as those of the court wherein
Judge Fisk, Goss and Burke have TAX
en- part since December 4. Such an
unheard-of proceeding probably never
before occurred in court of justice.
and we cannot bring ourselves to be-
lieve that the remaining justices
elect will support any such revolutions
ary action. Such threat, however,
ought not to deter this tribunal from
performing its duty. Without our