The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1928-12-15
WILL UNRAVEL
COFFEY APPEAL
NEXT TUESDAY
BY Qualifying for Judgeship
Mcfarland Put Incumbent's
Attack Under Handicap
COURTS POWER DISPUTED
Issue Is Whether District Tri-
bunal Can Act Under Cen
eral Authority
COURTS POWER DISPUTED

Decision in the action Of Judge j.
A. Coffey, challenging the right and
title of r. G.. Mcfarland to take
over the judgeship of the fourth
district court, January Z. will be
made Tuesday by Judge Thomas II.
pugh, Dickinson. who sat in the
court here, today and heard argu-
ments.
In effect the authority Of the
court to act has been challenged by
the counsel for Mcfarland. John
W. Carr, jamestown, took the
ground that as Mcfarland is in pos
session Of a certificate Of election
and has filed the qualifying oath.
there is nothing left for the court
10 act on.
This is due to the original COM
plant asking for an injunction on
the governor and secretary of state,
restraining them from issuing the
certificate of election to Mcfarland.
NJ. G.. Freerks, jamestown, of coun-
sci for Judge Coffey, admitted this
dilemma in his presentation OF the
COREY argument " COuIl.
Plaintiff Admits Dilemma
"They beat us to it," he said. II
assume the court is not interested in
. horse race"
Freerks went on to argue that
there still remained case for &C.
ton. He said the court had author
ity under it's general powers. He
said Judge Coffey was not there in
equity, and there was a good deal
of argument handling the case in an
equity sense. In fact, that became
the issue as the argument proceeded.
The contention of Counsel Freerks
was that the court had the author
ity to exercise its inherent power to
preserve it's sovereignty and to stay
and restrain any ultimate intrusion
of it's orderly processes. Also it had
the authority Of the corrupt prac-
tices act to conduct investigation.
Foresee Count Middle
Edward Cox, Bismarck, who with
]. NJ. Hanley, of Mandan, joined
Counsel Kreerks as associate counsel
when the proceedings opened, pic
tured this possible intrusion. He
assumed that it might ensue that
both claimants to the judgship-
Judge Coffey claiming continuing
authority till his successor is prop
erly qualified, and Mcfarland exer-
cising the authority of his certifi-
cate and oath-might sit in various
places in the district and deliver de-
cisions and opinions the validity OF
some of which would eventually be
swept away when the giver's eligi-
bility were ended by an adverse de-
cision on his possession of office.
That the court had general author
ity was insisted by Coffey counsel
in citation of the Miller VS.. Miller
case, in which the right Of appointed
commissioners in new county was
tried by the supreme court. This case
was held somewhat analogous. 1t
was cited to show that it was pos
sible to use the equitable arm of the
court to preserve status quo with
validity, though the action may not
assume the actual fact of court of
equity.
State Officials Let Out
The argument also was made that
If the court denies it's authority to
act, the merits of the charges that
Coffey was defeated by corrupt
deals with the Nonpartisan league
and with Joe Coghlana, withdrawing
candidate for judge, and James
Bothne, court reporter who went
over to Mcfarland from the employ
of Coffey, might never be tested
The only other course Judge Coffey
could take would be attempt to have
Mcfarland impeached by the legis-
lature.
Governor Maddox and Robert
Byrne, secretary Of state, contented
themselves by sending Charles ST.
mons, assistant attorney general, to
the hearing. Simons said filing the
election returns was all the action
he desired to take for the two state
officials. Judge Pugh then dismissed
that part of the temporary enjoinine
order that affected the governor an1
secretary Of state.
The nature of the Coffey charge!
against Mcfarland were stated t,
court by Counsel Freeks. The.
were that Mcfarland had Dough
off Joe Coghlan, one of the primar,
judicial nominees, with $1,000, to re
tire from the campaign for election
and throw his influence to McFar
land had lured Robert Bothne from
his services as court reporter an
private secretary to Judge Coffe,
by promises of appointing him to
similar position under himself
elected. and had then availed him
self Of Coffey secrets Bothne ha,
acquired in his confidential relation
to the Judge. Also that McFarlan
had exceeded the campaign expens
limit Of $500 which the law allows
judicial candidate.
All Of the allegations were cite
as violations Of the corrupt practice
nct AZ 1919.