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

!, ing at which no witnesses were sworn
in open court on behalf of the plain
! tiffs, at which no opportunity was af-
forded for cr0ss-examination of the
J persons whose exparte affidayits the
court takes as proof of the facts all
legged in the complaint, and at which
the defendants are denied the privilege
of subpoening witnesses in ther behalf
J, is consistent with the law of the land
as mentioned in Magma Charta and
which with us is commonly expressed
as the law, that "hears before it con-
demns, which proceeds upon iniquity,
and renders judgment only after trial.
i l am sure this court would not hesi-
/ tate to condemn the exercise Of arbi-
trary power by other departments of
4 governments and this fact affords a
weighty reason why it should not tran
gress beneficient, constitutional safe
guards
"The only hearing that there can be
upon the order to show cause in such
matter is hearing upon the question
of the temporary injunction, and this
may be upon affidavit. The legisla-
ture has not attempted to prescribe
any new or different mode of trial ap-
plicable to an injunction suit than that
which originally obtained. This court
should not lend it's sanction to mode
of trial that could not constitutionally
be prescribed by the legislature"
The Justice sums up the whole mat
I ter in the concluding paragraphs.
"The issues in this case were impor-
tant We know not what the evidence
might have been. No emergency can
Justify the denial of trial in a court
Of justice. If an exigency arises, final
judgment might better be suspended
than rendered upon insufficient hear
! ing.
i 81 can conceive of no judicial func-
tion calling for greater delicacy in
it's exercise than passing Judgment up
on the good faith, the motives or even
wisdom (if this is ever permissible) of
executive officers in the exercise of ex-
ecutive or quasi-judicial powers, and,
speaking for myself, I shall positively
refuse to do SO except after full hear
ing at which opportunity shall be CIV
en- to swear and examine witnesses in
their behalf and to cross examine the
opposing witnesses.
"a man who puts the State upon
proof of the commission by him of the
slightest offense has this constitutional
measure Of protection and l know Of
no reason why it should be denied Of
ficers elected by the people who are
accused of the grave otfense of willfui
, and wanton breach Of official duty. 1t
is no answer to say that trial Of the
very issues raised by the complaint
, and the answer might, of itself, have
the effect of inficting irreparable in
jury upon the plaintiffs.
IF consideration of the character
are once made controlling to the extent
of precluding trials, then government
by Injunction will become the accept
, ed rule instead of the odious exception.
r To dispose of this case, without trial
on the supposition that trial would
- deprive the plaintiffs of the benefits
of favorable decision, if one were I'll:
timately reached, is of course to pre-
Judge the entire merits Of the contro-
versy or rather to dispose of the case
as though the merits lay all on one
side, and this without a full inquiry
as to whether such be the law and the
fact. Courts of equity have exceed
ingly broad powers and flexible rem
edies for conserving any subject mat
ter in litigation before them. This
should make them all the more reluc-
tant to judge of the merits of con-
troversy with the fullest opportunity
for hearing.
'Perhaps the defendants merit the
censure expressed by the majority
perhaps they have been guilty Of the
matters found against them, but can
not find it in my conscience to say sc
judicially in the absence of a trial con-
Quoted according to the principles of
Anglo-SaNon Jurisprudence.
$50 far as the plaintiffs are concern
ed, it is to be hoped that the condition
Of the bank is such as to Justify the re-
opening which closely followed the an
nouncement of the majority opinion
Possibly an immediate trial on the
merits might have given added assur-
ance to the correctness of the findings
which are now based on a showing on
~ sufficient for prinla facie case re-
quired for temporary injunction.
"Viewing the matter as | do, can
only regard the final judgment as be-
ing void for lack of a trial conducted
. in accordance with due process of law
The final judgment should be set aside
and the case should either be held il,
allegiance upon proper application OF
referred to district court for trial OR
: the merits"
NM IN Il xHr nm