The weekly times-record. (Valley City, N.D.) 1912-1922, 1919-11-06
Judge BiIIlsel Arraigns
The M'l)ority Members
Of The Supreme Court

proceedings which had been begun by
him, under Section 1890 or 8O04, Coim-
piled laws of 1913 in the district
court of Cass county. These proceed
ings were predicated partly upon the
alleged insolvency Of the Scandinavia
an-American Bank and were brought
FOR the purpose Of having a judicial
determination of the fact and for the
further purpose of having it's affairs
administered in accordance with the
statutory law specially made applica-
BILE to the situation. In the applica-
ton it was stated that the district
| Judge before whom the case was pend
ing had construed the order previous
ly issued by the court as preventing
further proceedings in this action, and
the majority of this court, which is
the same majority that has joined in
the principal opinion. herein, declined
to place an Interpretation upon it's pre-
vious order that would permit the At
torney General to exercise his statu-
! tory authority to prosecute the action
referred to in the district court. Later
another application was made by the
Attorney General for modification Of
tain certain documents which he rep
resented to be material as evidence in
criminal proceedings against officers
of the bank. This request was also
denied by the majority, the minority
considering that reasonable provisions
! should be made to secure for the state
the benefits, y if any, of such original
evidence,
Judge Birdzell then explains the
means by which the majority Of the
court bronson, Grace and Robinson)
succeeded in evading the half promise
to admit testimony.
"On the return day the defendants
requested an opportunity to examine
witnesses in case the court should be
! desirous of passing upon the oolvency
or insolvency of the bank and the mer-
it's Of the controversy. But at the
+ granting this request, the court is
sued an order permitting the respond
ent to file affidavits upon any matters
concerning which they desired to sub
nit up until Oct. 23rd. 1t was under
stood by the court that this order
should not be construed as either a de-
nial or granting Of the request OF
the respondents made at the time Of
argument; but that such requests
should be dealt With III the future in
the light of such facts as might be
developed by the afidavits filed, and
as the need for further proof might
appear to the court. AS is stated by
the majority no additional affidavits
were filed by the respondents. But
on October 21st the Attorney General
petitioned for modification of the Or
der entered on the day of argument
which would permit him to examine
witnesses that he might subpoena to
appear before a district court: The
petition practically amounted to re-
newal of the request made upon argu-
ment and it was based upon the rep
resentation that there were some five
OF six persons whose testimony under
oath was material and who had re-
fused to give affidavits.
The Justice then cites that in the
face of this; "While this petition was
pending before it, the court, acting by
the majority members, considered the
proofs closed and proceeded to de-
termine the merits Of the controversy
in the manner indicated in the major.
ity opinion. These facts are not stat
ed in the majority opinion and l state
them as preliminary to the expression
of the reasons for dissenting in order
that the basis for the dissent may be
clear" =.
Judge Birdzell then dissents from
the majority opinion and from the ul.
innate disposition of this case; '"Upor
the grounds-frst and secondarily,. oil
lack Of original jurisdiction in this
court, and second and primarily, or
the ground of the improper method oil
/ conducting the trial; or, to speak
more accurately, upon the ground thai
no trial has been had.
1 Speaking Of jurisdiction, or lack o1
it, the Justice cited various allegations
made by the bank and league officials
which in the opinion of the majority
were so mingled that an irreparable
injury would result. ....
There is no apparent reason fol-
assuming that any court of genera
i jurisdiction would act contrary to tho
equitities of the case. Now I do no
understand it to be the law Of this
state or of any other state, where the
! constitution vests the Supreme Court
with only appellate and superintend
ing jurisdiction and power to protect
the governmental franchise by the is
suance of prerogative writs, that al
suits capable of being adjucated by
injunctive relief can be brought il
the supreme court merely becaus,
;; there may be large number of per
sons interested in the result or becaus,
. irreparable injury might result from
the failure of prompt judicial action
"On the other hand", says the jus
J, tice, SHOULD any district court fail tt
. properly safeguard the subject of lit
; igation by appropriate restraining or
; ders, an appeal could be promptly ta
: ken from it's orders. refusing relief
: which appeal would be speedily deter
| mined in this court. (Sections 1928 t,
1886 inclusive, and Sections 1888 ant
7841, c.. L. Of 1913. It should perfect
) ly plain that the interest of the stat,
as mere property owner is not /,
: ground for original jurisdiction. If i
were, why should the legislature ex
. = T. -