The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1921-10-12
COURT
UPH0LDS WEHE
DECISION AGAIN
Decides Judge Nuessle Correctly
Interpreted Order of the
Appellate Court
HAD REINSTATED WEHE
uk-
Nuessle Held Governor Frazier
Had Illegally Suspended
and Removed Wehe
HAD REINsTATED WEHE

The supreme court today affirmed
the order OF Judge Nuessie of district
court Issued in the case of l.. J..
Weile, formerly member of the
workmen's compensation bureau. Tho
decision avs 3 to 2, Judges Robinson
and Grace dissenting.
The decision is another chapter in
the several law suits Instituted by Mr..
Wehe following his. suspension and
removal from Office by Governor Fra
zierN in April, 1920 Judge Nuessle
had issued an order. based on su-
preme court decision, holding that
the order Of suspension by Governor
Frazier and the order of removal was
void. The governors attorneys ar.
pealed to the supreme court for a
modification of the, ordey, holding tina:
Judge Nuessle had not complied with
the appellate courts decision in draw.
ing the order. This appeal is denied.
Hold Decision Correct.
The majority opinion said that 1T
is held that in the instant case the
trial court correctly Interpreted ana
carried out the mandate of the appel
late court"
Judge Robinson in dissenting char.
acterized it as political law sult
and declared that il the supreme
court did not uphold Governor Fra
zler confusion was sure to follow,
and conflict between the various
branches of the state government.
The effect of the decision is uncer-
tain. A second removal proceeding
was held by Governor Frazier, and
c. A. M. Spencer is now serving un-
der new term of office, the term
during which Wehe was suspended
having expired. Judge Nuessle had
held that Wehe was still entitled to
salary during the time. he was sus-
pended.
Many bitter charge, were made i'll
connection with the case. When the
second removal proceedings was held,
after the supreme court decision,
Wehe refused to appear before the
governor for trial. T.le hearing was
held, although Judge Nuessle had is
sued writ OF prohibition and de-
clared the governor III contempt ri
court for proceeding with the hear
ing. Witnesses were called, testimony
taken and the governor decided that
Wehe should be removed from Office.
In another case pending in district
court Wehe seeks to collect salary
at at the rate of $20S.33 a month fro,l
June, 192O.i 1t had previously been
held he was entitled to mis- salary for
the month during which he was re-
moved.
Syllabus in Case.
The supreme court syllabus in the
present case, the majority decision
of which is signed by Judges Chris
tianson, Birdzell and Bronson, says:
1t is the duty of the lower court
on the remand of case, to comply
with the mandate Of the appellate
court and obey the directions there
in. Hence, where the supreme court
directs that judgment be modified
in certain particulars; and, as thus
modified, affirmed, it is the duty Of the
ncourt below to modify the origina
/ judgment as. and only as. directed
| and it has no power to make other
/ notifications or changes in such
| Judgment. It is held that in the in
/ stant case the trial court correctl.
interpreted and carried out the man
date Of the appellate court.
Appeal from the district court o
! Burleigh county, Nuess'e, j.
Defendant appeals from an orde
denying motions for an amendmen
and modification of a judgment.
| Affirmed
Per Curiam Opinion.
Grace, Ch. j., dissenting
Robinson, j., dissenting.
VIM. Lemke. attorney general, Gee
x. Foster. assistant attorney general
Phillip Elliot and Chester A. Mari
all ct Bismarck, N D.. for appellant
Theodore Koffel and L. J. Wehe
both of Bismarck N. D., for respond
ent.