CHAPTER XXVII

THE CODES OF NORTH DAKOTA

TRUE RELATION TO THE CALIFORNIA CODES THE FIELD CODES FIRST ADOPTED IN DAKOTA TERRITORY-THE SUCCESSIVE REVISIONS AND COMPILATIONS

In 1873 Peter C. Shannon and Alphonzo H. Barnes were associate justices of the Dakota bench. Chief Justice Geo. W. French had held the first term of court in 1871, in what afterward became North Dakota, and a second term in 1872. Chief Justice Shannon, who had succeeded Judge French, held terms of court at Pembina in June and September, 1873. Judge Barnes succeeded Judge Shannon in the Northern Dakota district in 1874, Shannon returning to the Yankton district.

Judge Shannon, about this time, prepared the Criminal Code adopted by the Dakota Legislature of 1875, and took a leading part in the codification of the laws under the act of 1875, adopted in 1877. Judge Shannon was learned in the law and in every way adapted to the work assigned him. He was most ably assisted by Hon. Bartlett Tripp and Granville G. Bennett.

No better statement of the origin of the codes can be presented than that written by Judge Shannon, in a letter to the writer hereof in 1895. He was then residing at Canton, S. D., with his mental powers as alert as in his younger days, and his health unbroken. He wrote:

"It is erroneous and gravely misleading to say that our codes were taken bodily from California, as serious results might spring from this notion. A few facts will overthrow it.

"The authors of the codes, comprising such eminent jurists as Field, Sherman, Bradford, Graham and Noyes, after years of labor, made their final report of the civil code to the New York Legislature in February, 1865, and within a year thereafter the Legislature of Dakota adopted it. Rejected there, it found a home and was welcomed here. California followed our lead six years later.

"The first draft of the penal code was laid before the Legislature in 1864, and in the following January it was enacted here. California, imitating our example, adopted it in 1872.

"Our civil procedure of 1867 was not borrowed from California, but was extracted from the New York original of 1849, the parent of most of our modern codes on the subject.

"Our criminal procedure as it now stands was prepared to suit existing territorial conditions by this writer in 1874, and was passed in January, 1875. It was mainly framed from the New York originals.

"Thus, historically, the first honor and the just praise belong to Dakota. We

did not take our codes from California. Our old territorial assemblies in this regard built well and wisely, whether they were aware of it or not, and laid broad and deep the foundations of perhaps the best system of jurisprudence extant. To them be always given due credit; and it would be well for future legislatures, as also for the profession, to see to it that this admirable system be not marred or disjointed.

"Without looking to California or seeking elsewhere, the truest and safest key to the meaning of our codes is to be found in the notes of their authors, appended to the sections. These not merely illustrate but justify the text."

It is well said that Judge Shannon has good and just reason to congratulate himself upon his great work as Dakota's chief codifier. That code will always remain his monument.

On the occasion of the death of David Dudley Field, Judge Shannon wrote the Sioux Falls Press:

"The death of the foremost and most influential lawyer in the United States, and the most distinguished law reformer in the English speaking world, deserves, especially among the people of the two Dakotas, more than an ordinary or a passing notice. His name will always be solidly linked with the best institutions of these two states; for he was the inspiring genius and the greatest author of our admirable and beneficent codes.

"When thirty-four years old he publicly began in New York his herculean work of legal reform, and within a few years bills were introduced in that Legislature incorporating his plans as to procedure in the courts. In 1847 he became chairman of the commission which inaugurated and carried out that plan of civil procedure which, adopted there, soon spread over many other states, and is the law here.

"In 1857 he was chairman of the commission that codified the civil and penal laws-works which, completed in 1865, were not, however, adopted by that Legislature, but first of all became laws in Dakota in 1865-6. Thus we have the gratifying distinction that our territorial assembly was the very first Legislature in the world to adopt and put into operation these two magnificent codes.

"From 1839 until his death-a period of fifty-five years-his mind and energies were constantly devoted to the one supreme object of improving the laws and simplifying legal proceedings in the courts.

"His ideal and model was the code of Justinian, which for thirteen centuries has been considered as one of the noblest benefactions to the human race, as it was one of the greatest achievements of human genius. His studies. early taught him that the Justinian code is, indeed, the chief source whence have been drawn most of the best principles and doctrines of boasted common law. And as the emperor, Justinian, in 528, appointed a commission of jurists to revise the laws and compile a code, incorporating in it all previous laws and codes, so Mr. Field applied to the Legislature for such a commission to revise and codify the laws of New York. Justinian took care to appoint on his commission the foremost lawyer of the empire, Tribonian, under whose skill and laborious superintendence and direction the Roman code was compiled in 534, taking its name, as usual, from the emperor who appointed the commission, rather than from the person who was its architect. And so with Napoleon and the French code. But the

name of Tribonian is, notwithstanding, inseparably connected with this masterpiece of jurisprudence.

"And so Mr. Field, appointed on the modern commission, became the Tribonian, not only in the codification of common law in both its civil and penal departments, but also of the laws of procedure and of the law of evidence. Not content with all this vast labor, in 1873, he issued his "Outlines of an International Code,' the purpose and thought of which is to cause arbitration to supersede war among nations in the settlement of all disputes between them. With advancing thought and experience among civilized people, the necessity of such a code becomes more and more apparent; and it is to be hoped the time will speedily come when this capsheaf of the genius of Mr. Field shall be garnered into public utility over the world. Then all oppressed nations and groaning peoples will bless his memory. The seeds thus sowed by him have been germinating and will continue to grow, for already many of the best intellects of the world, attracted by his project, have given their approbation to it."

Hon. Ernest W. Caldwell, who, with Charles H. Price, was the compiler of the laws of 1887, says these laws were "chiefly the product of the industry, literary skill and legal knowledge of Judge Shannon. As a life long student of law, as the leader of the commission which revised the codes, as chief justice of the Appellate Court before which these codes were first tested in litigation, and subsequently as attorney practicing thereunder, he is eminently well qualified to pass judgment upon the merits of the work which David Dudley Field has performed for the benefit of society through all the years to come."

Commenting on the above, Judge Charles F. Amidon wrote in 1895, "Another reason for the quite general notion that North Dakota copies the civil code from California, grows out of the effect of the California code upon the revision of 1877. The code as originally adopted in this state was almost an exact copy of the proposed draft of the civil code presented to the New York Legislature by the David Dudley Field Commission. There were many provisions in this original code which were not applicable to a western system of laws. In 1870 a commission was appointed in California to undertake a revision of the codes as presented in New York, so to bring them down to date, and also to so modify them as to make them applicable to a western community. This revision was carried forward with great thoroughness in California, by a commission composed of the ablest lawyers on the Pacific Slope, and the code as thus revised was adopted by California in 1872. The commission which was appointed in the Territory of Dakota under the laws of 1875, to revise the codes here, availed itself very largely of the work of the California commission, and most of the changes which were made in the revision of 1877 were borrowed from California.

COMPILED LAWS OF 1887

The Seventeenth Territorial Legislature in 1887 provided for a legalized compilation of the laws of the territory by passing a law empowering the governor of the territory, by and with the consent of the Council to appoint a compiler and assistant compiler of the laws. E. W. Caldwell and Charles H. Price were selected and appointed by the governor as the commission. This law conferred no power to revise the statutes, to reconcile contradictions, to correct incon

sistencies, or to supply omissions found in existing laws, but all such contradictions, inconsistencies and omissions were to be reported to the Legislature for their information and action.

The compilers reported to the Eighteenth Territorial Legislature, which assembled at Bismarck in January, 1889, but this Legislature evinced no disposition to consider the report, or correct any inaccuracies or inconsistencies in the laws. The National Congress had passed and President Cleveland had on the 22d day of February, 1889, signed the so-called "Omnibus Bill," which, among other things, provided for the division of Dakota and the separation of the area embraced in the boundaries of Dakota, into two states or territories, as the people living in the respective sections should by vote determine.

This commission compiled and classified all the general laws in force at the close of the Seventeenth Legislative session. This included the seven codes of the revision of 1877, but changed the arrangement of the chapters and numbered the sections consecutively, so that reference would be made thereto by the lawyers and courts as sections of the Compiled Laws of 1887, instead of sections of the civil, penal or other codes, as the case might be, and was of material advantage not only to the profession and courts, but to the officers of both the territorial and state governments. This compilation together with the session laws of 1890, 1891, 1893 and 1895 was the legalized and official compilation of the laws governing the state until the adoption of the revision of 1895.

Judge Amidon, continuing, said: "It was not until after the revision of 1887 that the codes became familiar to the profession in the Territory of Dakota. The code, never having been adopted in New York, never received any construction from the courts of that state, and it was natural, therefore, for the profession to look to California as the origin of the code, it having been adopted there, and many decisions having been rendered by the Supreme Court of California construing its provisions.

"What is true of the civil code is also true of other codes of the state. The commission of 1877 borrowed most largely from the codes of California. There was great advantage in this course, for it gave to the courts of this state the advantage of the construction of the very able court which then existed in California. No revision was attempted in North Dakota after 1877. Our present compiled laws are very aptly named. It was simply a compilation of the laws in force in 1887. The compilers had no power to make changes in existing law, or to propose amendments thereto.

"Nearly twenty years, therefore have elapsed, since the laws of this state have been revised. This was a period of great growth in statutory law. The original codes had been adopted in many other states, and at each adoption had been subjected to a thorough revision. During the same period a vast body of session laws had grown. This is especially true since the adoption of the constitution, much new legislation being required to carry the provisions of the constitution into effect. These laws, however, were framed and passed in a fragmentary manner to meet particular emergencies and were in many of their provisions irreconcilably conflicting. There was great need of a thorough revision which would bring the existing law into harmony and supply the deficiencies which would be manifest to a commission undertaking such work."

When Dakota was divided in 1889, the laws of Dakota Territory were

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spread over the states of North and South Dakota, and it remained that they be adapted to the constitution of the states, as appeared to be necessary.

The necessity of adapting these laws to the constitution of the state by eliminating provisions either conflicting therewith, or made obsolete, or repealed by any articles thereof, was recognized by the people of the state, and accordingly the Second State Legislature, which assembled in January, 1891, after reciting in the preamble to chapter 82 of the Session Laws of 1891, that there had been. no legalized compilation of the laws of the state; that the laws passed at the several sessions of the Territorial Legislature, and of the State of North Dakota, were confused and inconsistent, and did not conform to the constitution of the state, and therefore it was a work of great labor and difficulty to ascertain what the law really was on many subjects, enacted a law providing for the appointment by the governor of a commission of three persons to compile, arrange, classify and report the laws of this state, which may be in force on the first day of July, A. D. 1891.

Governor Andrew H. Burke, selected and appointed as such commission, Robert M. Pollock, of Cass County, Patrick H. Rourke, of Ransom County, and John G. Hamilton, of Grand Forks County. This commission met at Bismarck soon after the adjournment of the Legislature, and organized by the selection of John G. Hamilton as chairman, and John F. Philbrick, of Bismarck, as secretary. The commission prepared a very complete report, showing the various inaccuracies, contradictions and inconsistencies found in existing laws, and recommended the correction of these by the Legislature, and the publishing of their compilation when so corrected, but this Legislature had consumed forty-five days of a session limited to sixty days, in a bitter struggle to harmonize its conflicting elements and elect a United States senator, consequently the only consideration given the report was to refer it to another commission, upon whom was conferred the power to revise and codify the laws. Judge Charles F. Amidon, who was chairman of the commission of 1893, speaking of this compilation says:

"This commission appears to have done faithful work, making an exhaustive report to the Legislature of 1893, which, however, owing to the prolonged senatorial controversy, paid little attention to their report. Their powers, however, were limited to compilation and classification, though they secured the introduction of a large number of bills revising, many of which became laws and were useful to the new commission, which was given authority to revise, as well as classify, codify and compile. In fact the new commission was a revision, rather than a compilation commission. The act of 1893 creating the commission gave them power to reject all obsolete and conflicting provisions, and report any new laws necessary to complete the codes which already existed. The law provided that this commission should be appointed by the governor upon the recommendation of the judges of the Supreme Court. Governor Eli C. Shortridge appointed for this work George W. Newton, of Bismarck, Burke Corbet, of Grand Forks, and Charles F. Amidon, of Fargo, these persons having been recommended by the Supreme Court. The commission entered upon its work and carried it forward with such energy that when the Legislature met in January, 1895, the commission had ready to report to it a complete system of codes. These codes received the highest commendation of all members of the Legislature, and all were adopted in the main as reported, although several important amendments