Grand Forks herald. [volume] (Grand Forks, N.D.) 1916-1955, 1919-01-16
Supreme Court Decisions
From rigin Action

From Original Action.
The State of North Dakota. Plaintiff,
VS.. N. c. Macdonald, defendant.
Syllbus: .
l. The original jurisdiction of the
supreme court may properly be in
voked in a mandamus proceeding in
volving the right Of possession Of the
office of superintendent of public in
struction.
2. 1t is the duty of every public Of
f1cer. at the expiration of his official
relation, to surrenderto his successor
the property and insignia of the office
which the law commits to his Gus
tody. This duty is ministerial only,
and its performance is enforceable by
mandamus.
3. The certificate Of election to the
office in dispute and qualification
hereunder is a prima facie title to
the office, and the courts will not in a
mandamus~ proceeding to compel sur
the certificate of election go behind
such certificate.
Z. In such mandamus proceedings,
the prira facie title to the office can
not be defeated by averments of fact
which involve the ultimate title to the
office.
S. Original proceedings by the state,
on the relation of William LANCER, at
torney general, for the issuance of
writ of mandamus to compel the de-
PENDANT, N. C. Macdonald. to surren-
der the office Of superintendent OF
public instruction to Minnie j. Mel
son.
Writ granted.
Per curiam. Bronson, j., being dis
qualified, did not participate. Hon. w,
l.. Nuessle. judge of Sixth judicial dis
trict, sitting in his stead.
William LANCER, attorney general
and Edward B. Cox. assistant attorney
general, both of Bismarck, attorneys
for %relator.
John Carmody, Hillsboro, and ]. A.
Hyland. and Edward s. Allen. both OF
Bismarck. for respondent.
From Pierce County.
German-American State bank Of Bal.
four, N. OAK, a corporation
plaintiff and respondent, s. John
Erickson, defendant and appel.
liant.
Syllabus:
1. Where, during the trial of a case
the trial court announced a theory oil
the issues at variance with the issues
as framed by the pleadings, and rul.
ings were made upon the admission
OF testimony in accordance with such
theory. a purpose having been evinced
to conduct the trial according to the
erroneous theory of the issues, it is
held that. under the circumstances
such rulings constitute prejudicial er.
ror emitting the party adversely at.
fected to q. new trial.
2. Where q party adversely affected
by rulings of the trial court excerpts
to the rulings and abandons the trial
and is not required by the trial court
to continue. he does not waive the er.
rors.
Appeal from district court of Pierce
county, Burr, J.
Reversed.
Opinion Of the court by Birdzell, J
Christianson, Oh. j., concurs spe.
cially.
Albert Weber Towner, N. D., attor.
ney for plaintiff and respondent.
Campbell & JongeWaard. Rugby, N
D., attorneys for defendant and ap.
pellant.
From Mckenzie County.
S. j. Aandahl. Chas,. W. Bleick and
M. P. johnson, Us the board Of
railroad commissioners Of the
state of N. Dak:, plaintiffs and
respondents, VS.. Great Northern
Railway company, defendant anG
appellant.
Syllabus:
1. The board of railroad commits.
sioners have no general or inherent
powers authorizing them to require
railroad companies to establish sta.
tions at places o possessing the re.
quisites described in statutes.
2. Section 1855 of the compiled law,
OF 1913 does not authorize the estab.
lishment of a new station within five
| miles Of another station established
in this state.
3. Where a railroad company estab.
dishes q stopping place for receiving
and d~ischarging passengers. the rail,
road commissioners have authority t
require the construction and mainte,
nance OF a platform and building SUI.
hcient for the accommodation Of sucl
traffic.
I. Held. by a majority Of the court
that the evidence in the instant cast
is insufficient 10 show that q stoppins
place has been established and ad.
Vertised by the railroad company.
Appeal from the district court o.
Reversed.
Opinion Of the court by Birdxell, ]
Robinson. j. oncur specially. Bron.
son, j., being disqualified, did no,
participate. Hon. w. L.. Nuessle, fudge
Of Sixth judicial district. sitting in hi:
stead.
Murphy & Toner. Grand Forks, at.
torneys for appellant.
Geo. F. Schafer. Shafer, N. D.. and
Palmer, Craven & Burns, Williston
attorneys for petitioners.
VIM. LANCER, attorney general, Bis.
marck, and. VIM. g. Owens, states ut.
torney. Williston. attorneys for re.
spondent.
SOCIALISTS llEPnSE KIrHIKE