The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1935-02-04

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result. In short, 1t Is my deliberate
Judgment that the conditions which
have been brought about In this
state the past week make 1t highly
probable that an attempt to try to
jury would be wholly futile and
merely involve needless expense and
tend to prolong present state Of un-
certainty and turmoil. Therefore,
am Of opinion that ends OF justice
will be best served II case be return
ed to Supreme Court for final dis
position"
Waive Trial by Jury
Immediately after this report had
been received by this court counsel
for the respective parties were inform
ed and directed to appear. They did
so appear. The report was duly con-
sidered and In open court counsel
for the respective parties announced
that they fully acquiesced in the re-
port and that they waived trial by
jury and requested the Supreme
Court to try all issues in the case,
both Of law and Of fact. The ques-
ton, therefore. presented itself
whether in the circumstances this
court should try and determine the
issues OF fact in the case.
The primary function Of this court
is to exercise appellate Jurisdiction;
that Is, to review on appeal the de-
cisiors rendered In the trial courts.
Section 86 Of the state constitution
expressly 80 provides. It says that
except Is otherwise provided In the
constitution. the Supreme Court shall
have appellate Jurisdiction only. In
addition to the appellate Jurisdiction
the constitution grants to the 6u-
preme Court general superintend-
ing control over all inferior courts;
and 1t also grants to the Supreme
Court original and prerogative jur-
isdiction ITO issue writs Of habeas
corpus, mandamus. quo warranto,
certiorari, injunction and such other
original and remedial writs as may
be necessary to the proper exercise
Of its jurisdiction" and authorizes
the court to hear and determine the
same. North Dakota Constitution,
Section 3D. But the section Of the
constitution which grants this power
specifically outlines the procedure
to be employed by the court in car
rying it into effect. It says that In
all original proceedings mo Jury trial
shalled be allowed in said Supreme
Court, but in proper cases questions
Of fact may be sent by said court
to q district court for trial" North
Dakota Constitution. Section 3D.
Cite Similar Gases
Before the North Dakota Consti-
tuition was adopted, perplexing ques-
tons had arisen In other states as
regards the right OF trial by Jury
OF questions of fact in quo warranto
proceedings brought directly in the
Supreme Court. In Wisconsin and
Kansas it had been found necessary
to impanel a jury in the Supreme
Court for the purpose OF trying ques-
tions similar to those involved in
this case. State v. Messmore, IA Wis.
IFS; State v. Allen, S Kan. 1924; State
v. Foster, 80 Kan. 3l4. In a quo
warranto proceeding brought in the
Supreme Court of Michigan that
court had referred the case to a cir
cult court for trial. the refusal of the
lower court to try the case to jury
was held to be error and it was said
that 1t was not within the power of
the Supreme Court to deprive a par
ty Of the right of trial by jury. Peo-
pie v. Doesburg. Is Mich. 1873. The
provisions of the constitutions of
Wisconsin. Michigan and Kansas,
comforting original jurisdiction upon
the Supreme Court were quite SIM
liar to those OF the Constitution of
North Dakota, but in none of those
constitutions was there a provision
similar to that in Section 81 of the
North Dakota constitution:-"no Jury
trial shall be allowed in said Supreme
Court. but in proper cases questions
OF fact may be sent by said court to
a district court for trial."
Case Makes History
This Is the first time in the his
tory of this court that 1t has been
confronted with the trial and de-
termination Of disputed questions OF
fact in a quo warranto proceeding
instituted In this court. In all other
quo warranto proceedings that have
been instituted directly in this court
no questions Of fact were presented.
And, so far as we can ascertain,
during the entire history OF the state
there have been presented to this
court for determination only two con-
troversies involving title to an cleo
tive state office.
The first case involved the office
OF State Superintendent Of Public
Instruction and arose following the
general election OF 1918. At that
election one Minnie ]. Nelson re.
ceived the highest number of votes
for that office. A certificate Of cleo
ton was issued and she duly quail
fled. But the incumbent, N. G. Nc
Donald, refused to turn the office
over to her. The Attorney General
applied to this court for a writ Of
to compel the office to
W SulICllAC4SO w GMASo 4NIclSOII. xIlC
incumbent. Mcdonald, sought to as
sert, among other defenses. that
Miss Nelson did not possess the pre-
scribed legal qualifications and that,
consequently. he was entitled to con-
tinue in office. This court held that
the certificate Of election issued to
Miss Nelson was prima facie evil
dence Of title to the office: that such
prima facie title could not be defeat
ed In a mandamus proceeding by
averments Of fact involving the ul-
innate title to the office and directed
q writ Of mandamus to be issued.
Miss Nelson was accordingly placed
In possession Of the office. State
v. Mcdonald, II N. D. $50, ITO N. w.
873. After that decision had been
rendered Mcdonald. the incumbent,
made application to the Supreme
Court for leave to institute an original
In quo warranto in the
Supreme Court. The Attorney Gen.
eraI appeared in opposition to the
application, pointed out that the
involved a trial and de-
Of issues Of fact, and
commended that the relator should
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