Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1919-11-06
LEAGUE JUSTICE
SAYS BANK CASE
WAS NEVER TRIED
Bindzen Declares Supreme
Court Did Not Have Juri,-
diction and Did Not Con-
duct Trial Properly
Scores Trial by Affidavit

Bismarck, N. D., Nov. 3.-(Spe-
cial. III pride myself that I have
never. shirked duty, no matter how
hard that duty may be- said Justice
Luther E. Birdzell, Nonpartisan Lea
que member Of the supreme court,
when asked for copy OF his dissent
ing opinion in the Scandinavian
American bank case. This opinion
was handed down Saturday and is
perhaps one of the most scholarly
written and complete opinions in the
files of North Dakota court. Judge
Birdzell does not take up merely
few points in connection with the
Scandinavian-American 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 af1idavits and injunctions instead
of examination of witnesses. In his
concluding paragraph, he says:
Viewing the matter as I do,
can only regard the final judgment as
being void for lack of a trial con-
Quoted in accordance with due pro-
cess of law. The final judgment
should be set aside and the case
should either be held in allegiance
upon proper application or referred
to district court for trial on its
merits"
Judge Birdzell, in his discourse,
does not touch upon the points of
post-dated checks, deeming that too
puerile for discussion. The dissent
ing opinion covers seventeen type
written sheets and cites case after
case from North Dakota law files as
we'll as other states in the union.
Among the most striking Of the state
ments made in his opinion, may be
found:
1T seems to me that the whole
theory of the regulatory statutes is
ignored by the majority"
Compared to denial of judicial
due process, all other questions are
as chaff to the wheat. 1t seems to
me that the procedure is most extra
ordinary. I have searched in vain
for any precedent for such action.
"If consideration Of this character,
(referring to the trial by afidavits
and injunction), are once made con-
trolling to the extent of precluding
trial, then government by Injunction
will become the accepted rule in
stead of odious exception.
Perhaps the defendants merit the
censure expressed by the majority.
Perhaps they have been guilty in the
matters found against them, but
cannot find it In my conscience to
say SO judicially in the absence Of a
trial conducted according to the
principles of Anglo-Saxon jurispruT
dence.
Judge Birdzell does not mince mat
ters. He does not uphold the action
of the banking board, LANCER or Hall
specifically, but he decrys the condi-
tions by which majority Of SUI
preme court may exercise their off,
cial powers to such an extent as to
usurp all the prerogatives Of trial
court. using affidavits as witnesses
and petitions as jurymen.
Altho 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 presented by Assistant Attorney
General Albert E. Sheets, Jr. for At.
torney General LANCER and Judge.
w. 8. Lauder, who was special
counsel IN the case.
''I dissent from the majority opin-s
ion and from the ultimate DISPOSE
tion Of this case upon the grounds.
first and secondarily Of lack Of jur-I
isdiction in this court; and second
and primarily, on the ground Of the
improper method Of conducting the
trial; or, to speak more accurately,
upon the ground that no trial has
been had.
E3ssfy
TEA CHEERS, s,EXA1lINATION.
The regular examination Of appli-
y. = - fnr 20 II, arss an ntary certi-s