The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1917-03-24

wv" VN0 OVAN oA> A~A>
No Longer Urges That Appoint
ments Were Made Before Law
Passed Senate
That Governor Frazier not only can
not name successors to Crawford,
Taylor and White whose nOmina-
tions by Hanna and confirmation by
the senate in 1916 are held to be
strictly legal, but that through his
failure to comply with the statute re-
quiring that successors to Scow and
Power prior to January Is, the COVER
nor has lost any right to name such
successors, and that these two men,
bers shall hold over until their sue
cessors are legally nominateH and
confirmed by the senate Of North Da-
kota, which now cannot be done until
the Sixteenth assembly COnvenes in
1919, arc the main contentious in the
elaborate briefs Of Attorneys Fisk,
Murphy & Linde, Of Bismarck. and
Aubrey Lawrence, Of Fargo, filed this
afternoon in the supreme court hear
ing on the custer proceedings insti-
tuted on behalf of Frazier by Attor-
ney General LANCER.
The hearing, originally set for 10
o'clock this morning, was deferred
to 2 this afternoon in order to allow
attorneys on both sides time to COM
plete their briefs. H..
The big house chamber in which
the hearing was held was fairly well
filled with sympathizcrs of both the
old and the new board when 2 o'clock
struck, and deep interest was evil
denced In every turn of the proceed
ings. All of the supreme court JUS
tees wcic onathe bench Y
7. A Body Blow. ......g
Counsel for the present board had
been inclined until today to concedc
Governor Frazier's right to still NOM
mate successors to ScoW and Power,
whose places he declined to fill at
the time appointed by law. Consulta-
ton of authorities, however, has con-
vinced counsel that this cannot be
done, and the contention advanced
this afternoon was that all five mem
bers of the present board must hold
over until successors are duly noml-
mated and confirmed in a regular
manner by the senate of the state.
Would Have Expired.
Messrs. Power and ScoW were ap-
pointed as members of the board OF
regents in March, 1915, for terms
which will expire July l. 1917, and
their appointment was duly confirmed
by the senate, claims counsel for de-
fense.
"If the court holds, as we believe
it must. that the members of the old
board were properly appointed and
confirmed, then, of course, there is
no vacancy which may be filled. In
such event, the question may arise,
however, as to the status and rights
on and after July of the two mem
bers whose terms would ordinarily
expire on that date. Will the COVER
nor at that time have the power to
appoint successors to the two mem
bers aforesaid?
"While not strictly involved in this
case, it may be deemed advisable to
settle such questions at this time, and
thus avoid further litigation. Our
contention in brief is that no vacan-
cics which the governor has power to
fill will occur at such time, for reas-
ons hereinafter stated.
"The statute is very clear and ex-
plicit as to the method of appointing
their successors. Sec. of the act
made it mandatory upon the governor
prior to January Is to nominate, and.
subject to the consent of a majority
of the senate, to appoint successors
to these two members whose terms
expire on July 1. This statutory man.
date was wholly and apparently in
tentionally ignored by the executive,
for he made nominations as thus re-
quired, but instead he sent five nom1-
nations to the senate to fill the sup
posed vacancies which he claimed ex-
listed at that time, which he contends
had existed at all times since July l.,
1915. This being the situation. can
the governor on or after July l OF
this year do alone what the legisla-
ture commanded and undoubtedly had
the right to command should be done
only by and with the consent OF the
senate? If so, then he can complete
ly nullify and set at naught the peo-
pies will as expressed by such stat
ute ..
with but one exception, no COVER
nor of this state ever before attempt
ed to thus usurp function commit
ted to another Ex-Governor Short
ridge attempted to do so in 1893 with
reference to the appointment OF GER
tain members of the board Of trustees
of state institutions, including the
penitentiary, under a statute in all
essential particulars like the act here
in question, and this court in very
thoroughly considered opinion held
that he possessed no authority to
make such appointments, as no vacan-
cies existed.
'sIn the Boucher case, supra, the
court uses this language:
"'There is no doubt in our minds
that the statute in question must