The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1918-09-19

of it's past failure to enforce its ordi--
! nances against the distractions OF
| sidewalks from subsequently remoV-
! ing all distractions therefrom.
r.. Under the provisions of section
| 1913, compiled laws. 1913, the city
| commissioners of the city of Fargo
nave the power TO compel the reTnoVtal
Of areaways which encroach upon the
public sidewalks.
Cross actions to enjoin the obstruc-
lions OF a public sidewalk. and 20
prohibit the city officials from inter
| Appeal from the district court of
| Cass county; Hon. c. NJ. Cooley. judge,
! City of Fargo appeals.
Opinion Of the court by Bruce, Oh.
J.. Grace, J., concurring in the result;
Robinson, j., dissenting.
sp ala a., shu Ir Fargo ats0rneyS
! Murphy ana Barnett & Richardson,
| Fargo, attorneys for property owners.
From BuFIeIGh County.
pei s[RaFG vs. C0sn 69steThoas a"d dairy
commissioner for the state OF North
Dakota, and J. N. Hagan, commission
er of agriculture and labor for the
| state Of North Dakota, respondents
/. Chapter 284, compiled laws, 1913.
which requires the owners or operat~
Ors of cream stations within the state
and provides that the dairy commits
sIoner may at any time revoke such
license on evidence that the ncen9ee
has violated any of the existing dairy
statutes of the state. is constituttonal
and does not deprive such licensees Of
liberty or property without due pro-
cess OF law.
2. The creamery business in North
Dakota Is O. business which is anect-
ed with a public interest.
g. Licenses may be imposed not
merely for the purpose Of acting as
temporary permissions TO engage IN
harmful occupations. but in order 70
so control those that are useful that
their operation may be harmless and
that they may really subserve the
public good.
purpose Of regulation SO that bust
ness which intimately affects the pub
lie welfare may be brought within the
supervision Of the authorities, ana
that the regulations which are made
concerning It may be more easily and
certainly enforced.
3. The dairy commissioner of the
state Of North Dakota, whose once
compiled laws, 1913, is an Independent
officer, and, as far as his duties as
dairy commissioner are concerned, Is
not subordinate to the commissioner
of agriculture and labor.
6. Where one chooses his forum IN
which his rights shall be determined
or adjudicated he cannot complain of
lack of Jurisdiction.
not limited to regulations necessary
for the preservation Of good order, or
the public health or safety. The pre-
vention of fraud and deceit, cheating
and imposition and unfair competition
are equally within It's province
8. The fact that chapter 105.. of the
laws Of 1907, which provides for the
revocation of the licenses Of the own
~ ufa ha dairy
commissioner on evidence that stat
utes of the state have been violated |
is not unconstitutional, and does not !
deprive the owners Of due process OF |
the order of the dairy commissioner |
is provided for by the statute, 1t being |
clear that mandamus will lie to re-
dress any wrong which Is suffered |
through any arbitrary tyrannical or |
unreasonable action on the part of the |
officer, or which is based on false in |
formation.
8. The writ Of certiorari Is not a |
writ Of right but will be granted or |
denied in the discretion of the court |
and according to the circumstances of |
each particular case as justice may |
10. The writ of certioraari which is
compiled laws Of 1913. can only be
used when inferior courts officers.
their Jurisdiction and there Is no APP
peal, nor, in the judgment of the |
court. any other plain, speedy and
adequate remedy. 1t cannot be used
for the purpose Of reviewing the mer-
its of a case and of weighing evil
dence.
II. A person who obtains a license
under a law and seeks for a time to
enjoy the benefits thereof, cannot aft
erwards and when the license Is
sought to be revoked question the
constitutlonality of the act.
Certiorari to review the action Of |
the district court in revoking a cream
cry license.
Appeal from the district court of |
Burleigh county; Hon. w. l. Nuessle,
judge.
Judgment for respondents.
Petitioner appeals.
Affirmed.
Opinion of the court by Bruce, Oh, ].
Christianson and Robinson, IL, dis
sentng.
w. E. McCurdy, Bismarck, attor-
ney for petitioner and appellant; VIII
liam LANCER, attorney general, and
Edward 3. Cox, assistant attorney
general, attorneys for respondent.