The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1919-11-03

NO ORIGINAL JURISDICTION
IT was Of the opinion that this court
did not possess under the constitution
the requisite original jurisdiction, and
further reflection confirmed that opln-
ion. The majority of the court, how
ever, assumed jurisdiction and lsued
tile order. That action brought the
matter here for future proceedings
as might be deemed appropriate. 1t
was a justifable assumption at the
time that upon the return of the order
to show cause, the temporary order
would be dissolved, if sufficient show
ing were made by the respondents to
justify them continuing the course they
we're pursuing; or, if not, that 1t would
be continued pending a trial of the
Issues on the merits. But SO. far as
the assumption related to trial on
the merits, it proved to be altogether
too liberal, as it will appear presently.
"Prior to the return day, the attor-
ney general had asked for an interpre-
totion of the injunctional order with
reference to its effect upon certain pro-
ccedings which had been begun by
him, under section 1890 or 1904, G. i.
1913. in the district court Of Cass coun-
ty. "
''These proceedings were predicated
partly upon the alleged Insolvency OF
the Scandinavian-Amer bank. and
were brought for the purpose of hav-
ing judicial determination Of that
fact and for the further purpose OF
having its affairs administered in ac-
cordance with the statutary law spe-
cially made applicable to the situation
In the application it was stated that
the district judge before whom the
case was pending had construed the
ordered previously issued by this court
as preventing further proceedings in
that action; and the majority Of this
court, which is the same majority that
has Joined in the principal opinion
herein, declined to place an interpre-
tation upon its previous order that
would permit the attorney general to
exercise his statutary authority to pro-
secute the action referred to in dis
tlict court
slater another application was made
by the attorney general for modifica-
ton of the order that would permit
him to retain certain documents
which he represented to be material
as evidence in criminal proceedings
against officers Of the bank This re-
quest was also denied by the majority,
the minority considering that reason
able provision should be made to Sc
cure for the state the benefits, If any,
Of such original evidence. On the re-
turn day the defendants requested an
opportunity to examine witnesses in
case court should be desirous of pass
ing upon the solvency or insolvency OF
the bank and the merits Of the contro-
yersy. The case already stood at issue
/, both upon a motion to quash for lack
Of jurisdiction and upon an answer
rutting in issue all the principal facts
alleged in the complaint. But at, the
close of the argument, instead of grant
Ing this request, the court entered
an order permitting the respondent to
hle affidavits upon any matters con
cerning which they desired to submit
r:oof up until October %.
PETITION IGNORED
ut was understood by the court
flat this order should not be cOnstru-
ed as either a denial or granting OF
the request Of the respondents made
at the time Of argument; but that
such request should be dealt with in
the future in the light of such facts
as might be developed by the affidavits
fled. and as the need for further proof
might appear to the court. AS is stated
nv the ma ajority, no additional affidav.
It's were filed by the respondents. But
on October q the attorney general pc
t:tioned for modification Of the order
entered on the day of argument which
would permit him to examine wit
ne ses that he might subpoena to ap.
near before a district court. The pc.
tition practically amounted to re
newal of the request made upon argu
ment, and it was based upon the re
presentation that there were some five
or six persons whose testimony under
oath was material and who had re
fused to give affidavits.
"While this petition was pending, 1t
the court, acting by the majority mem
bers, considered the proofs closed and
proceeding to determine the merits Of
controversy In the manner indicated
In the majority opinion. These facts
are not stated in the majority opin
ion and I state them as preliminary t.
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