The weekly times-record. (Valley City, N.D.) 1912-1922, 1919-11-06

Bismarck, N. D., Nov. So pride
myself that have never shirked du-
ty, no matter how hard that duty may
be-" said Justice Luther E. Birdsell,
Of the supreme court, when asked for
a copy of his dissenting opinion in the
Observation-Disclosures Bank case.
This opinion was handed down Satur-
day and is perhaps one of the most
scholarly written and complete opln-
ions in the files Of North Dakota court.
Judge Birdzell does not take up mere
ly few points in connection with the
Scandinavian-Ameri Bank case,
but reviews the whole procedure and
in clear, concise English, tells just
what he thinks of the action Of the
majority members of the court, Rob-
inson, Grace and Bronson, and what
he thinks Of the new order of things,
which would place matters on trial by
affidavits and injunctions instead of
examination of witnesses. In his con-
cluding paragraph he says:
'VieWing the matter as'1 do, l can
only regard the final judgment as be-
ing void for lack of trial conducted
in accordanc with due process of
law. The final judgment should be set
aside and the case should either be
held in, allegiance upon proper applica-
ton or referred to a district court for
a trial on it's merits"
Judge Birdzell, in his discourse, does
not touch upon the points of postdated
checks, deeming that too puerile for
discussion. The dissenting opinion
covers seventeen typewriter sheets
and cites case after case from North
Dakota law files as we'll as other states
in the union. Among the most strik-
ing of the statements made in his opin-
ion, may be found:
''It seems to me that the whole the
-ory of the regulatory statutes is ig-
nored by the majority"
compared to denial of judicial due
process, all other questions are as chaff
to the wheat. It seems to me that the
procedure is most extraordinary.
have searched in vain for any prece-
dent for such action.
'If consideration of this character,
(referring to the trial by affidavit and
injunction) are once made controlling
to the extent of precluding trial, then
government by injunction will become
the accepted rule instead Of odious ex-
ception. "a
as. ltPerhaps,- the. defendants merit the
censure expressed by the majority.
Perhaps they have been guilty in the
matters found against thenl but | can
not find it in my conscience to say ju-
dicially in the absence of trial con-
Quoted according to. the principles of
Anglo Saxon Jurisprudence"
Judge Birdzell does not n1ince mat
ters. He does not uphold the action
of the Banking Board, LANCER or Hall
specifically. but he decrys the condit-
ions by which majority of a supreme
court may exercise their official pow
ers to such an extent as to usurp all
the perogatives of a trial court, using
afidavits as witnesses and petitions as
jurymen.
Although Justice Birdzell does not
go into the merits of the case in his
opinion thereby taking any specific
side in the controversy, he does in his
reasoning, uphold the whole course OF
legal action and argument as present.
ed by Assistant Attorney General Al
bert q. Sheets, Jr, for Attorney Gen
eral LANCER and Judge W. S. Lauder
who was special counsel in the case
: The first section Of his opinion is large
ly chronological, and he says: .,.
At the time the original application
in this matter was presented to this
court was Of the opinion that the
court. did not possess, under the con-
stitution, the requisite original juris,
dction to deal adequately in this mat
ter presented in the complaint. The
matter Of jurisdiction required decis.
ion then if the court was to issue the
order prayed for, for the plaintiffs re
quested that restraining order issue
!. at once which would have the effect Of
removing Halldorson, the receiver ap
pointed by the Banking Board, and Of
placing the bank in the control of the
Public Examiner. 1t was also asked
that the Banking Board be immedi
ately restrained from invalidatins
post dated checks as collateral secur
ity. This restraining order was asked
for without notice and upon an ex par
te application. It appeared clear tx
me that it should not issue unless this
& court was possessed of the requisite ju
risdiction not only to disturb the ex
listing status to the extent requested
but to determine fully the merits o.
the controversy foreshadowed by thu
complaint. / was of the opinion tha
this court did not possess, under the
Constitution, the requisite original ju
rsdicton. and further REFLECTION has
confirmed that opinion. The majority
of the court, however, assumed juris
diction and issued the order. Tha