were made by the Legislature, in which all members of the commission did not concur."

Two of the members of the old commission were in position to render important work in the final adoption of the codes. Hon. Patrick H. Rourke was a member of the Senate and one of the Senate judiciary committee and of the joint compilation committee, and on both did excellent service. Maj. John G. Hamilton was clerk of the joint committee and after the adjournment of the Legislature was employed to assist Hon. Burke Corbet on the political codes and in the indexing. The new code took effect July 1, 1895. Judge Charles J. Fisk, of Grand Forks, a most notable lawyer, was secretary of the commission which prepared the codes of 1905.

1895 COMMISSION

This commission reported to the Fourth Legislative Assembly in January, 1895. It embodied its work in seven bills, each bill covering one of the seven codes. The Legislature created a special joint committee of the House and Senate and referred these seven bills to this committee. The committee examined each bill carefully and critically, it made few amendments to any of the codes, and such as they recommended did not contain any material changes. The Legislative Assembly separately considered each code as reported by the joint committee, and enacted each code substantially as compiled by the commission, excepting the political code, wherein was inserted an entirely new revenue law, as well as other amendments. The commission did not approve of some of these changes and disclaimed responsibility for their authorship or enactment. Owing to the meagerness of the appropriation for printing by the state, the edition of the 1895 code was a small one and was soon exhausted. To supply the demand for the codes from lawyers and the various municipalities, the Legislature on the 21st day of February, 1899, enacted a statute authorizing the revision of the Revised Codes of 1895 to be known as the Revised Codes of 1899. This revision was to be made under the general supervision of the secretary of state, the Hon. Edward F. Porter, but was restricted, however, to the elimination of such chapters, articles or sections of the Codes of 1895 as were repealed by the Legislature of 1897 and 1899, to the substitution and incorporation of all amendments without modification, to the renumbering of the sections, chapters and articles when necessary to harmonize the statutes, to the re-arrangement of the table of contents, and to the re-indexing. It was in substance to be a compilation, rather than a revision of the existing laws. The secretary was empowered to employ experts in compiling and digesting, and other help deemed necessary to facilitate the work of publishing, and selected Reuben N. Stevens, a lawyer of Bismarck, Marshall H. Jewell, editor of the Bismarck Tribune, assisted by John G. Hamilton, of Grand Forks, to compile, codify and publish the edition of 1899. This edition being in turn exhausted, the Ninth Legislative Session in 1905 authorized another codification to be known as the Revised Codes of 1905. This was to be prepared under the general supervision of the governor, Elmore Y. Sarles, and secretary of state, Edward F. Porter, and in its general arrangement was to follow the compilation of the 1899 code, with the additional feature that it should contain annotations of the decisions of the Supreme courts of the Terri

tory of Dakota, and the states of North and South Dakota, arranged by appropriate reference to sections construed or applied by these courts. All the decisions contained in the Territorial Reports and thirteen volumes of the North Dakota Reports, and seventeen volumes of the South Dakota Reports are annotated and incorporated in the compilation of 1905. The contract for the codification, annotation and publication of this compilation was awarded to Marshal H. Jewel, of Bismarck, who associated with himself Reuben N. Stevens, a lawyer of Bismarck, John G. Hamilton, a lawyer of Grand Forks, and Robert D. Hoskins, of Bismarck, then and for many years clerk of the Supreme Court of North Dakota.

COMPILED LAWS OF 1913

The period intervening between the publication of the Revision of 1905 and the Legislative Session of 1913, was prolific of statutes covering the subjects of irrigation, water rights, primary elections, initiative and referendum, board of control, management of the penal and charitable institutions, and a multitude of statutes putting into force and effect provisions of a progressive character, which had been enacted in compliance with the popular demand therefor.

This fact, coupled with the exhaustion of the 1905 edition, induced the Thirteenth Legislative Assembly, in the year 1913, to provide for the compilation of all general laws in force on the first day of July, 1913, by authorizing the secretary of state, Thomas Hall, to contract with the Lawyers Co-operative Publishing Co., of Rochester, N. Y., to codify, annotate and publish a compiled edition of the laws of North Dakota in two volumes, which were to be furnished to the state, its residents and various municipalities at the rate of $15.00 for the two volumes. The contract made with this company required not only the codification and classification of all the laws, but their annotation by reference to decisions of all the state, and United States, to the American Decisions, American Reports, American State Reports, Lawyers Reports Annotated, and the North Dakota Reports. The company fulfilled its contract and has published two volumes with annotations from the reports herein before specified and has divided each code into chapters and sections, which sections are consecutively numbered from 1 to 11,438 inclusive, and the secretary of state has accepted these volumes as the official compilation of the laws of the state.

CHAPTER XXVIII

THE SUPREME COURT

The constitution of the state, as submitted to the people and by them ratified, provides for a judicial system, consisting of supreme, district, county, and justice courts.

Police magistrates were to be chosen in cities, incorporated towns and villages. The Supreme Court was to consist of three members, elected for a term of six years each and to hold office until their successors were elected and qualified. An exception was made in the case of the judges elected at the first election under the constitution.

They were to be classified by lot, so that one should hold his office for two years; one for five years, and one for seven years. The lots were to be drawn by the judges themselves, and the result of the drawing certified to the secretary of state and filed in his office.

By a unique provision—and one peculiar to North Dakota-no chief justice was to be elected by the people, but the judge having the shortest term to serve, not holding his office by appointment or election to fill a vacancy, should be the presiding judge of the court.

By this arrangement every judge elected for the full term would become the presiding judge before the expiration of his term.

This system prevailed until 1908, when, by constitutional amendment, the membership of the court was increased to five.

On January 15, 1909, the then governor, John Burke, appointed John Carmody of Hillsboro and S. E. Ellsworth of Jamestown as associate judges of the Supreme Court.

At the general election in 1910 three judges were elected for the full term of six years each.

The qualifications prescribed by the constitution for a judge of the Supreme Court were:

I. That he should be learned in the law,

2. Should be at least thirty years old,

3. Should be a citizen of the United States and shall have been a resident of the Territory of Dakota or of the state at least three years next preceding his election.

The comprehensive term, "learned in the law," in its final analysis, means nothing more than that the candidate has been admitted to practice law in the courts of this or some other state. The presumption being that the admission to practice law, in the courts of this state, disclosed such a knowledge of the law as to place the candidate in the class of one "learned in the law."

The first judges chosen at the election when the constitution was ratified by vote of the people in October, 1889, were Guy C. H. Corliss, of Grand Forks; Joseph M. Bartholomew, of La Moure, and Alfred Wallin, of Fargo. They were all elected for equal terms, and it became necessary then to determine by lot the length of term of service of each.

For the purpose of organizing the court and determining by lot the length of the term of service of each, these three judges met at Bismarck, the seat of government, and drew lots.

How the drawing was conducted was never made public, as the judges were required by law merely to certify the result and file the same in the office of the secretary of state. The result so certified discloses that Mr. Corliss drew the short term of three years from the first Monday in December, A. D. 1889, and by virtue thereof became the presiding judge, or the first chief justice in the state; Mr. Bartholomew drew the five-year term, and Mr. Wallin, the oldest in years of the three, drew the seven-year term.

At this same meeting a clerk and reporter of the court were appointed. R. D. Hoskins, of Bathgate, was appointed clerk in December, 1889, and has served continuously in that capacity since. Edgar W. Camp, of Jamestown, was at the same time appointed court reporter.

The duties and emoluments of these officers were such as might be prescribed by law and the rules of the Supreme Court not inconsistent with the law. The clerk is the custodian of all the records of the court, viz.: briefs, pleadings, files, including all papers used on appeal.

He furnishes a syllabus of cases heard and decided to such daily newspapers of the state as care to publish them.

The syllabus of all cases decided in the Supreme Court must be prepared by the judge thereof who writes the opinion in the particular case.

Every point fairly arising on the record and essential to the proper determination of the case, must be decided by the court, be embodied in the opinion and covered in the syllabus.

In most appellate courts of the United States, including its Supreme Court, the syllabus of cases is prepared either by the clerk or the reporter, and it frequently happens that the syllabus and body of the opinion are at variance as to the questions determined, resulting from the failure of these officers to comprehend the opinion or understand and express in the syllabus in clear, pertinent language the law of that case as decided by the court and as stated by the judge who wrote the opinion.

The judge who writes the opinion knows what is decided in that particular case and is therefore properly equipped to prepare a correct syllabus.

The framers of the constitution made no mistake when they incorporated in that document the provision that syllabi should be prepared by the judges, who would, of necessity, be familiar with the controverted questions decided and the reasons upon which their determination turned.

The Supreme Court reporter prepares for publication, in books of not less than 550 pages, all decisions of the court, and includes in each case a brief statement of the points raised in the briefs of the appellant and respondent.

The Reports of recent years, however, have been copiously annotated by

references to decisions of other courts wherein the same or kindred questions have been decided.

The Supreme Court had no legal home from its organization until 1909. was a "migratory" court. The constitution had prescribed that three terms of court should be held each year, "one at the seat of government, one at Fargo, and one in Grand Forks." This arrangement continued until the passage by the legislative assembly, in February, 1909, of an act providing for two general terms to be held at the "seat of government," to be known as the April and October terms.

Special terms only may be held in cities other than Bismarck, the seat of government, upon twenty days' previous notice thereof in a newspaper published at the seat of government.

These special terms may be held elsewhere, when, in the opinion of the court, the public interests require.

Special terms have been held under this act in Grand Forks in June of each year, to receive the report of the State Bar Examining Board for the admission. to practice law in this state of such persons as they found qualified and recommended. Special terms have also been held in Fargo for this same purpose.

All appeals from county courts with increased jurisdiction, or district courts, are heard and determined at Bismarck.

The constitution makes no provision for the appointment or election of a marshal or other officer for the service of any process issued by this court, or for attendance upon the court during its sessions. Accordingly, in 1890, the Legislative Assembly by act provided that the sheriffs of Burleigh, Cass and Grand Forks counties should act as marshals of the court when in session at their respective counties. These marshals were entitled to charge and receive the same fees and mileage for the service of process or other papers directed by the court to be served, and the same compensation for attendance upon the court, as is allowed by law to sheriffs; such fees, however, to be paid out of the state treasury, as other state expenses are paid.

The court was authorized to appoint the librarian of the law library to act as bailiff of the court, his duties to be prescribed by the court. The librarian, however, receives no additional compensation for any services he may render to the court. It is noteworthy here that the court has no librarian of its own, as the library remains, as in territorial days, in the custody of the secretary of state. The judges select the books to be purchased, but they are bought by the secretary of state out of any appropriation made therefor by the Legislative Assembly. The Assembly deserves criticism for failure to provide the court with its own librarian and in compelling it to use the librarian as a bailiff.

The judges are, to use the epigrammatic language of a citizen of Bismarck who investigated the matter when the proposition to increase the court membership to five was under consideration: "Worked like horses in harvest! They work unremittingly to keep up the calendar and avoid the delay which is incident to appellate practice." It is no eight-hour day with them.

While the Legislative Assembly has appropriated for stenographers for the judges, it has not been as liberal or as generous as the needs of the court justify. The great increase in population and the large number of judicial districts in consequence thereof, together with giving the right of appeal direct from