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issues on the merits. But so far as the assumption related to a trial on the merits, it proved to be altogether too liberal, as will appear presently.

Prior to the return day the attorney general had asked for an interpretation of the injunctional order with reference to its effect upon certain proceedings which had been begun by him, under §§ 7990 or 8004, Compiled Laws of 1913, in the district court of Cass county. These proceedings were predicated partly upon the alleged insolvency of the Scandinavian American Bank, and were brought for the purpose of having a judicial determination of that fact, and for the further purpose of having its affairs administered in accordance with the statutory law especially made applicable to the situation. In the application it was stated that the district judge before whom the case was pending had construed the order previously issued by this court as preventing further proceedings in that 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 its previous order that would permit the attorney general to exercise his statutory authority to prosecute the action referred to in district court. Later, another application was made by the attorney general for a modification of the order that would permit him to retain certain documents which he represented 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 provision should be made to secure for the state the benefits, if any, of such original evidence. On the return day the defendants requested an opportunity to examine witnesses in case the court should be desirous of passing upon the solvency or insolvency of the bank and the merits of the controversy. The case already stood at issue, both upon a motion to quash for lack of jurisdiction and upon an answer putting in issue all the principal facts alleged in the complaint. But at the close of the argument, instead of granting this request, the court entered an order permitting the respondent to file affidavits upon any matters concerning which they desired to submit proof up until October 23d. It was understood by the court that this order should not be construed as either a denial or a granting of the request of the respondents made at the time of argument; but that such request should be dealt with in the future in

the light of such facts as might be developed by the affidavits filed, and as the need for further proof might appear to this court. As is stated by the majority no additional affidavits were filed by the respondents. But on October 21st the attorney general petitioned for a modification of the order 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 a renewal of the request made upon argument, and it was based upon the representation that there were some five or six persons whose testimony under oath was material and who had refused to give affidavits. While this petition was pending before it, the court, acting by the majority members, considered the proofs closed, and proceeded to determine the merits of the controversy in the manner indicated in the majority opinion. These facts are not stated in the majority opinion, and I state them as preliminary to the expression of the reasons for dissenting in order that the basis for the dissent may be clear. I dissent from the majority opinion and from the ultimate disposition of this case upon the grounds: First and secondarily, of lack of original jurisdiction in this court, and second and primarily, on the ground of the improper method of conducting the trial; or, to speak more accurately, upon the ground that no trial has been had. I shall present my views of these questions in the logical order, though it be in the inverse order of their importance.

Jurisdiction. There are no allegations of fact in the complaint which show that the questions involved concern the governmental franchise of the state or the liberties of its people. It is stated that there was on deposit in the bank over $100,000 belonging to the Agricultural College of the state, and that the state guaranty fund would be affected if the receiver should be permitted to dissipate the funds of the bank; that Halldorson's appointment as receiver was without legal authority, and that the defendants were usurping the powers and responsibilities of the public examiner. These are all the allegations in the complaint that afford any basis for the exercise of original jurisdiction. There are other allegations which are intended to invoke the equity powers of the court; such, for instance, as the allegations respecting irreparable injury. In the majority opinion these allegations are all mingled, and it is made to appear that, unless the equity powers of this particular

court are exercised in the manner prayed for, an injury of great concern to a large number of people will result. There is no apparent reason for assuming that any court of general jurisdiction would act contrary to the equities of the case. Now I do not 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 superintending jurisdiction and power to protect the governmental franchise by the issuance of prerogative writs, that all suits capable of being adjudicated by injunctive relief can be brought in the supreme court merely because there may be a large number of persons interested in the result, or because irreparable injury might result from the failure of prompt judicial action.

These may be the very considerations which induce a court of original equity jurisdiction to act in any case, and to grant a temporary injunction to prevent threatened irreparable injury, but they certainly do not afford a reason for interference by a court whose original juris diction is limited to superintending control, and prerogative causes. Re Court of Honor, 109 Wis. 625, 85 N. W. 497. Should any district court fail to properly safeguard the subject of litigation by appropri ate restraining orders, an appeal could be promptly taken from its orders refusing relief, which appeal would be speedily determined in this court. Sections 7528 to 7536 inclusive and §§ 7833 and 7841, Comp. Laws of 1913. It should be perfectly plain that the interest of the state as a mere property owner is not a ground for original jurisdiction. If it were, why would the legislature expressly provide for suits against the state in the district court of Burleigh county, or where the property is situated? Comp. Laws 1913, § 8175.

Every justice of the peace, every county court of increased jurisdiction, and every district judge in the state, is constantly deciding matters which are of more or less interest to the state as a whole, and which call for the application of laws designed to protect the public welfare. There may be as much general interest, upon occasion, in the result of a coroner's inquest as in a decision of this court upon a grave constitutional matter. A cause does not appeal to the original jurisdiction of this court merely because of the general interest in the decision of the issues presented, or on account of its significance from any other than the strictly governmental standpoint. But when the state is prevented by the acts of private individuals from controlling its own insti

tutions through its own officers, selected according to law, its governmental franchise is involved. State ex rel. Moore v. Archibald, 5 N. D. 359, 66 N. W. 234. Or when a department, which is vested with the exercise of an important power of the state to govern in certain matters, is paralyzed because of the action of other officers of the state who threaten in fact to prevent the legal exercise of the governing franchise, this court may prevent the threats from becoming effective by compelling the performance of those ministerial duties upon which depends the operation of the governmental franchise through such department. See State ex rel. Birdzell v. Jorgenson, 25 N. D. 539, 49 L.R.A. (N.S.) 67, 142 N. W. 450.

The case just referred to does not hold, as the majority have indicated, that a request for the salary of a public officer presents a proper appeal to the original jurisdiction of this court, and one reading the case is at loss to understand how the majority could have gained such an impression; certainly the allegations showing the effect of the threatened action upon a department of government were fully set forth there, as they are not in the instant case. It would serve no good purpose in this dissenting opinion to refer at length to cases where original jurisdiction was not exercised. Among such may be cited: State v. Nelson County, 1 N. D. 88-101, 8 L.R.A. 283, 26 Am. St. Rep. 609, 45 N. W. 33; State ex rel. Byrne v. Wilcox, 11 N. D. 329, 91 N. W. 955; State ex rel. Walker v. McLean County, 11 N. D. 356, 92 N. W. 385; Duluth Elevator Co. v. White, 11 N. D. 534, 90 N. W. 12; State ex rel. McDonald v. Holmes, 16 N. D. 457, 114 N. W. 367; State ex rel. Madderson v. Nohle, 16 N. D. 168, 125 Am. St. Rep. 628, 112 N. W. 141; State ex rel. Miller v. Norton, 20 N. D. 180, 127 N. W. 717.

Reference to the foregoing cases will disclose that this court has consistently refused to exercise its original jurisdiction through prerogative writ where the questions presented involved merely the private rights of relators or applicants, or where the subject-matter was of local, municipal, as distinguished from general governmental, interest. It appears that in such cases jurisdiction is declined even though the case be one calling for the interpretation of some ambiguous provision of a state law in which a large number of persons are interested. The above cases establish beyond peradventure the proposition that the pre

rogative jurisdiction of this court is never properly invoked except where the franchise of government is itself directly involved.

Of the allegations in support of jurisdiction the only one which, in my judgment, tends in the least degree to support it is that with reference to the usurpation of the powers of the public examiner by the banking board. This may perhaps be thought to involve the governmental franchise of the state in that it concerns the prerogatives of an office created by the legislature for the protection of the public. But assuming that this allegation does present a sufficient cause for original jurisdiction, it does not follow that this court should make of that jurisdictional fact a dragnet to draw to it the entire controversy. It could readily determine the jurisdictional matter, and the cause would remain for trial on the other features if the plaintiffs should desire to press the same before the district court. In other words, if it should be determined that the banking board had no authority to appoint a receiver, then the possession by the public examiner is in every way legal ; but if it were determined that the banking board had authority to ap point a receiver, then there would remain for consideration the question as to who ought to have possession of the bank pending the determination of the further issues raised by the allegations on one side of official misconduct by the banking board, the condition of the bank, etc., and the denial of the other. Upon such issues the final judgment in the case would necessarily be based. After the determination of the preliminary jurisdictional question, then the case resolves to one involving merely private rights, and it should be dealt with accordingly.

Under an identical constitutional provision the supreme court of Wisconsin has had occasion to consider this question, and, both in a per curiam opinion and in an opinion by Mr. Justice Winslow, have held that they will not go further than to decide the questions that do affect the prerogatives of the state. In the per curiam opinion it was said (129 Wis. page 672): "Serious questions as to the construction of the primary law and the duties of executive officers thereunder may properly be considered as questions affecting the prerogatives of the state and the liberties of the whole people, and on that account this court may properly consider them in the exercise of its original jurisdiction, because the decision of such questions necessarily prescribes a

46 N. D.-32.

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