The Bismarck Tribune Newspaper, September 29, 1934, Page 14

THE BISMARCK TRIBUNE. SATURDAY, SEPTEMBER 29, 1934 E MOBLLRING Maintains Removal of Langer for Disability Not Sup- ported by Statutes Si -dour judges sitting in the case con- ~ Curred, was filed Sept. 20. . He maintained that the majority = opinion of the court was based upon ® wrong premise, “by reason of which = the superstructure cannot stand.” Judge Moellring claimed original ~ error in construction by the majority of Section 127 of the constitution . @efining those qualified to be voters. = , He contended the term “felony” in = the constitution to mean “felony as = defined by the laws of this state only ‘and punishable under such laws.” Ignores Federal Statute Felonies under the federal statute 3 do not come under provision of the = state constitutional provision, Moell- = ring maintained. “It is significant also,” he said, *that we have no ‘express statute’ & eiving effect to a ‘conviction and sen- = tence in another state’ or in another Z jurisdiction; nor does Section 127 of ~ the constitution contain any ‘express’ * provision to that effect.” - Judge Moellring inferred an inva- = sion of the rights of the state legis- lature to impeach, by granting of the ~ ‘Writ of quo warranto. = “To establish a system of automa- ~ tic deposition of a constitutional of- { ficer, such as the governor, by pow- ~ ers wholly beyond the jurisdiction of = the state, and without any element + of control by the authority of the = state, and without regard to the de- » gree of moral turpitude involved, is an } innovation in government contrary to the generally accepted ideas of self- ¢ government and not in keeping with = the intention of the men who framed » the constitution or of the people who * adopted it,” he contends. . “From my knowledge of the men ‘who wrote the constitution of this state and the rugged independence of those pioneers, the people who adopt- - ed it as the fundamental law of this atate, I do not believe that they ever intended such construction to be giv- en to that instrument.” Construes Constitution He quoted Section 127 of the con- atitution which reads: “No person who is under guardianship, non com- pos mentis, or insance, shall be qui ifled to vote at any election; nor any Person convicted of treason or felony unless restored to civil rights.” “A controversy arises over the meaning of the word ‘felony’ as con- tained in this section of the consti- tution. Does it mean ‘felonies’ as de- fined and punishable under the laws of North Dakota, or does it mean, in addition thereto, such other felonies as are defined and punishable in other jurisdictions, such as the juris- dictions of the various states or of the United States, or of a foreign country? “It is plain to me that this term in the constitution means felony as derived by the laws of this state only, and punishable under such laws. And Tam unable to read into this section of our constitution that the term ‘felony’ as used therein, as a disqual- ifying act, includes felonies as de- | fined by the laws of the United States or of the laws of the various states. “It is a well-established rule that in construing the provisions of a con- stitution, where there may be doubt as to the meaning, in arriving at a conclusion we should gather the pur- Pose and intention of the framers of the constitution.” Intention Construes Referring to the formation of the state constitution, Judge Moellring said, “If the members of the consti- tutional convention had intended the conviction of a felony as defined in were sufficiently familiar with the English language, and the meaning of legal terms, to clearly express such intention.” “Cases cited in the majority opinion in determination of the case do not shed any light on the construction of were in existence at the time the Con- stitution was framed “except a few of an isolated character.” J Numerous citations of law were ‘Phillips GASOL ) 3 | 3 WORLD WAR MEMORIAL BUILDING, TUESDAY EVENING, OCT. 2, AT 7:30 P. M. AS GUESTS OF THE PHI The equipment used in this demon duplicate actual driving condition: demonstration will take all of the technical. We know that you most unusual demonstration. SIDEGLANCES - -. By George Clark made by Judge Moellring in support of his contentions. He cited 46 Corpus Juris, page 949, Section 60; the text presents the tule: “Constitutions or statutes fre- quently disqualify for office one who has been convicted of a felony or crime generally. Whether or not & crime is within the meaning of such @ provision is a question for the courts. Ordinarily, conviction in the courts of the United States of an of- fense created by an act of congress does not constitute a disqualification, but the legislature, under authority of the constitution, may declare that such a crime either against the laws of the state, United States, or a sis- ter state shall operate as a disquali- fication.” Claims Weight of Authority “This general rule is sustained by the overwhelming weight of author- ity,” Judge Moellring claimed. The case of Brown vs. United State, was cited by him in support of his contention that jurisdiction of the United States is foreign to that of states. This case Judge Moellring said, “makes clear thatthe jurisdictions of the United States courts are foreign to the states in the same sense and to the same extent as the jurisdictions of the state courts are foreign to each other, and definitely free and independent in their acts. ...a state overnment has no part in the federal courts, or in the execu- tion of such judgment. Conversely, the federal government has no part ir. the procurement of criminal judg- You Needa'’t Pay to Have the sizes and colors, 407 Broadway “What are they trying to make us wear now ;judgment procured in a jurisdiction jed out, “but, like any other individual, : Pro- curemenit of a criminal judgment in | peal. ments in the courts of the states‘or in the execution of their judgments. “In view of the absolutely inde- pendent character of a criminal foreign to this state, it is difficult to; conceive that the framers of our con-) stitution intended an automatic dis- franchisement and deposition of an incumbent of the high office of gov- ernor, upon a mere conviction of a felony in such jurisdiction and before) a final determination of the same on appeal, and even though the act complained may not involve any moral turpitude whatever. Raps Majority Opinion “Such is the plain implication of the majority opinion, as I read it, wherein it says, ‘we therefore hold that consistent with the theory and Purpose of Section 127, whether an offense for which a conviction is had is a felony must be determined by the law of the jurisdiction where it is committed.’ “Buch construction,” Judge Moell- ring said, “it seems to me, would lead ‘us into strange paths and by-ways. “A governor, like any other indivi- dual, must meet the consequence and pay the penalties for such crimes as he commits,” Judge Moellring point- he is entitled to his day in court— his full day in court—and he has not had his full day in court where an appeal is taken and the matter is not finally determined on the ap- “Whether, upon conviction and pending an appeal to the higher court, a governor should lay aside the or permanently, depends not w what name may be given to the par- ticular offense charged, but upon the nature of and character of the al- leged act and the degree of moral turpitude involved, Cites Power to Impeach “Impeachment is not dependent up- on outcome of prosecution in a for- eign jurisdiction, he said. Length of any appeal would not affect the pow- er or authority of the legislature to impeach and try. “It is one thing to disqualify a voter,” Judge Mi said, “but is @ matter of quite different import to depose a governor engaged in the Performance of his duties. The re- moval of @ governor is not a trivial matter but is fraught with deep responsibilities and grave consequ- ences. “In viewing the situation as it exists in this case, therefore, it is apparent that the construction placed upon Section 127 of the constitution by the majority opinion is contrary to the rule of construction as laid down by the long line of decisions of both state and federal courts, including the su- preme court of the United States... “The petition in this case and the stipulated facts do not indicate any cause of action and the writ should be denied.” Youths Confess to Series of Holdups Ashland, Wis., Sept. 29.—(>)}—State crime bureau detectives Saturday said confessions to a long string of burg- lareis, safe-cracking jobs and hold- ups in six states were obtained from Kenneth Parrant, 29, Minneapolis, and David Omullee, 21, St. Paul. They were arrested in a farmer's barn Tuesday after they had escaped and der-Sheriff Lyle Freeman, Ashland county, riddled the rear tires of their car with machine gun bullets. Grocery stores, warehouses, filling stations and hardware stores were robbed at the following places, accord- ing to the confessions: Remer, Min- neapolis, Mora, Federal Dam, Alba! —all in Minnesota; Lisbon, Lehman, Hettinger; Mohall, Bowbells, Rehmer, all in North Dakota; Bowman, in Montana; Hot Springs, Spearfish, in South Dakota; Bonduel, Embarrass, and Mellen, in Wisconsin, and several Places in Wyoming. Sportsmen Urged to Build Game Shelters The state game and fish depart- ment is asking North Dakota sports- men to train their guns on a longer Tange objective. “With the hunting season now in full swing,” department officials said, “many of us are wondering, if, and how, we will get our bag limit.‘ We do not stop to wonder ‘will we have enough birds next year to get our bag Umit?’” Hope was expressed that as the hunters go through fields this fall and see there will be no feed or cover for the birds this winter, they also) will see the necessity of building some kind of cover. to help the birds through. “We believe,” said Thoralf Swen- son, state game commissioner, “this winter will. be the most severe we have ever had, because we do not have the feed or cover that we may have had in years past. 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