The Fargo forum and daily republican., 1918-01-26
SUPREME Court
Decisions
From Ward County.

The state Of North Dakota, on the
relation Of John J. Nedreloe, as sher-
im Of Ward county, North Dakota'
pIaiutiG and respondent. VS.. X. W.
kenHard, as auditor Of Ward county
North Dakota, defendant and appel
Syllabus: I. Under the provisions
Of section 1920 OF the compiled laws
or 1913. as amended by section D.
chapter l12. Of the laws Of 1915, which
provides that the salary Of the sher-
in shall be regulated by the p0pula-
tion I'M his county according TO tha
last preceding official state or tederal
census. tho imrrease In salary COM
menccs at the beginning Of the year
after that In which census Is re
ported. and applies to present IN
Cumbent Of the Office.
Mandamus TO compel the delivery
of "A salary warrant
Appeal from the district court or
Ward county; Hon. X. T.. Leighton,
i. Judgment for plaintiff. Defendant
appeals.
Affirmed.
opinion of the court by Bruce. Oh. j.
Robinson, J., dissents.
Bosard & Twiford. Mlnot, attorneys
for respondent; Q. r. Herigstad,
states attorney, and r. a. Nestos as
sistaut states attorney, Of MinOt at
torncys for appellant
state NJ North Dakota. eN rel VII
liam LANCER, attorney general, petl-
toner, VS.. Carl r. KositEky, as state
auditor, respondent.
syllabus: The mere presence Of
and participation by, n member or the
supreme court in case IN which ne
may be disqualified on account Of his
interest I'm the result, does not render
the proceedings and Judgment OF the
court in that case void, where MS
presence is not necessary to COnsti-
tute a quorum. and his vote does not
determine the result, although section
100. of the state constitution, pro-
Nides that i'm case judge OF the su-
preme court shall he In any way in
terested in a case brought before said
court the remaining judges of said
court shall call one Of the district
court Judges to sit with them in the
hearing Of said cause.
@ Under section 7340, compiled
laws, 1913. providing the supreme
court shall he always open for the
issue and return Of all wTits which
il may lawfully issue, and that any
Judge OF said court may order the IS
suanCe of any such writ, an order for
the issuance of an alternative writ or
signed by a district Judge
who, under COnEt. N. II. Sec. 100, had
been called, in to sit In the place or |
a member Of said court who was dis !
qualified by reason Of his interest |
was legally issued.
3. An application to the supreme |
court for a writ of mandamus direct |
ed to the state auditor, TO require |
him to issue his warrant upon the !
state treasurer for the payment Of the |
expenses of the judges Of the supreme J
rnurt without the filing of an item |
zed statement. rs provided by section |
720, compiled laws. 1917, involves the |
rights and franchises or |
ne state government and invokes |
he original jurisdiction Of the SUI
Dreme court.
4. Section 72O, complied laws 1918,
providing that each judge Of the su-
creme court shall receive the sum OF
$500 per annum for expenses, TO be
1aid i'm quarterly payments without |
Hing any itomZed statements. is not.
{ interpreted as providing an add
iOnal compensation for the services
,f tho judges OF such court. so far
is the Judges now in Office are con
.erued unconstitutional AS being in
riOlation Of section 80. of the state
constitution, providing that the com
for the services OF a Judge |
II the supreme court shall not be in
'reased or diminished during the term
or which he shall have been elected.
3. Section 100 compiled laws. 1913.
md the said section as amended by |
cCtiOu 2. chapter 224 laws 1917, pro
'iding that each Judge of the supreme
curt shall receive the sum of $500
leT aHuum for expenses, to be paid in
IuarteTly payments without filing any |
EemlHCu statements, II interpreted as
providing for the payment Of "eX-
tenses" rather than for Services,
IRE not unconstitutional as being in /
.i0lation Of either section 90 of the
constitution, providing that the COM
,ensation for the services OF a judge
# the supreme court shall not be In
reased or diminished during the J
erm for which he shall have been
lected. or of section 1S6 of the state
constitution. providing that no bills, |
laims. accounts, or demands against
he state shall be audited, allowed or |
,aid until a full itemtzed statement
hall be filed with the officer or off, L
ers, whose duty II may be to audit
he same.
Application by the state of North
Dakota, upon the relation of the at
Orney general for a writ Of manda-
nus against Carl r. Kositzky, as
tate auditor.
Writ allowed.
VIM. LANCER, attorney general, and
}. Y. Brennan, assistant attorney !
General, Bismarck, for petitioner;
'heO. Koffel, Bismarck, for respond
mt
Opinion OF the court by Chas. NJ.
,oOley district judge.
Robinson. J., concurs by separate
pinion.