(dissenting.) On a somewhat superficial examination of the record and the questions involved in this application, I was disposed to concur in the majority opinion, but, after giving it more careful attention, I am unable to do so. The record before us contains in full the motion papers, including the affidavit supporting the application of-the Attorney General for a change of the place of trial used in the district court, and it is conceded in the majority-opinion that that official made a strong case. It is at least customary to include in or annex to the return a copy of the record made in the lower court. This was not done in this instance. It is unnecessary to consider whether the omission in itself is fatal to the respondent’s case, because it was stipulated on the hearing in this court that we might consider and decide the application for the writ upon the papers before us. The original record, including the affidavits submitted to the district court by the respondent cannot be considered because, as indicated, they are not contained in the record. ■ The Attorney General having made out a case, we are limited in determining whether the judge of the district court legally exercised his discretion in denying the application, to a consideration of the competent and material statements in the return-The Attorney General charged that he had good reason to believe and did believe, that the state could not have a fair and impartial trial of said action in Burleigh county. Among the reasons given for this statement were that the people of the county were so prejudiced against the prosecution and conviction of persons for offenses against the various statutes prohibiting illegal traffic in and sale of intoxicating liquors and the unlawful use of buildings for such purposes, and permitting buildings and premises to be used therefor, that it was common knowledge and the commonly expressed opinion of the people of the county that the state could not, in Burleigh county, obtain a fair trial for the crime charged, or in any case where the crime charged was the violation of the prohibition law . That the laws of the state on that subject and the maintenance of premises for such unlawful use and of knowingly permitting such use by owners of buildings had ever since the enactment of such laws been openly and notoriously violated by numerous persons in the city of Bismarck and other parts of the county with the knowledge and tacit approval of the people generally and of the peace officers, and that the attempt to *762punish offenders against such laws had generally met with determined resistance and refusal to convict or indict without regard to the evidence furnished by the prosecution; that at the term of court then in session, in the case of State v. Bartheau, the defendant was acquitted on his third trial for violation of the prohibition law, notwithstanding the fact that' the Attorney General believed that the evidence introduced was more than sufficient to warrant a conviction, and that such acquittal could not have been by any reason of any reasonable doubt of the guilt <?f said defendant in the minds of the jurors, but was solely on account of the prejudice against the enforcement of the law, and reference was made in support of that contention to the reporter’s record of the evidence introduced on such trial, and that at the first trial in said case at a former term of the district court for Burleigh county, Hon. W. J. Kneeshaw then presiding, reprimanded the jury for its disagreement, (-and that in such case the evidence introduced was substantially the same as in the trial at which said defendant was acquitted; that the defendant McGillis was the duly elected, qualified, and acting sheriff of said county, and that he himself, and through his deputies, subpoenaed the members of the jury, was in charge of the jury, the courthouse, jury rooms, jail, and courthouse premises, whereby he has easy and ready access to the jury and witnesses in attendance on such court; that said defendant, besides being sheriff, was an active politician of the county, and that at the time of his arrest one James Meyers was his tenant in the building described in the information and that Meyers was also under arrest; that in the case of State v. Higgins, charged with keeping and maintaining a common nuisance as defined by the prohibition law, the defendant Higgins was arrested at the same-time'that the herein named parties were arrested, and was a tenant of one Patterson in the building described in the information in the last mentioned case, and that Patterson had for many years been a prominent politician in the county, and was then chairman of the county commissioners thereof, and that the prestige of said Patterson and of the respondent, when combined, was so great that in his belief a jury could not be had in the county that would give the state a fair trial in the case of State v. McGillis; that both said Patterson and said McGillis up to that date had for many years last past been *763at all times directly or indirectly interested in places where intoxicating liquors had been sold in violation of law, or directly engaged in the sale of intoxicating liquors in violation of law, and were the leading influences in Burleigh county that had made possible the prevention of the enforcement of the prohibition law, and that in his belief the interest of said Patterson and of the defendant McGillis in preventing conviction would be a common interest for the protection of their respective properties and interests, and that their united efforts would be exerted to prevent the state from obtaining a fair trial; that the prejudice existing in the county against the enforcement of the prohibition law was general, and that among other reasons for his belief was his knowledge of the sentiment of the public obtained through a residence of four years, part of such time having been spent as prosecuting official whose duty it was to prosecute violators of 'such law, and to inform himself as to general conditions and public sentiment. These allegations are met in the return, as far as they are met, by quotations from the affidavits of the defendant McGillis, of Patterson, and of Dullam, one of defendant’s attorneys, and, as far as the recitations of the order of the trial court denying the change of venue indicate the affidavits of the three persons named constitute the only evidence submtited by the defendant. It will be observed that, although there is no allegation that Patterson had been informed against for permitting his building to be used for illegal purposes under the prohibition law, yet it is positively stated that a tenant of his in such building had been arrested on the charge of violating that law. So it is apparent that Patterson stands in nearly the same relation to the prosecution as does defendant McGillis. The return states that McGillis in his affidavit alleges that the charge that he at all times has been, or is, directly or indirectly, interested in places where intoxicating liquors have been sold in violation of law, or directly engaged in the illegal sale of such liquors, and had for many years been the leading influence in the county that had made possible the prevention of the enforcement of the law, is false, and without foundation, and denies that he has any particular prestige, political or otherwise, but alleges that he was defeated for public 'office two years ago in the city of Bismarck; that the prestige of said Patterson was not as stated in said affidavit of the Attorney General, but that *764the said Patterson' had twice been defeated for office since the spring of 1907; and that statements that Patterson and the affiant were using, or would use their influence to prevent the enforcement of the prohibition law, are also untrue. This affidavit is largely denials that affiants have, at all times, been guilty of the acts alleged. The affidavit of Dullam is stated in the return of respondent to be to the effect that during the term of court then sitting four cases had been submitted to juries in which 'defendants were charged with unlawfully selling intoxicating liquors, in three of which verdicts of guilty were found, and onfy one defendant was acquitted; that other defendants have pleaded guilty to not registering their United States Government licenses; that he had heard many jurors examined as to their qualifications who testified almost without exception that they were in favor of enforcing the provisions of the prohibition law; that he did nor believe that Patterson had the prestige ascribed to him by the Attorney General; and that he believed that the state could and would have a fair and impartial trial. He fails to disclose how niany of the three persons convicted were convicted in their absence. The remaining portion of his affidavit presents a quibble on the distinction as to public sentiment between the crime of selling intoxicants and the crime of permitting a building to be used for such purpose illegally. The affidavit of Patterson is in all material respects a duplicate of that made by McGillis, and alleged that the charge that he at all times for many years has been directly or indirectly engaged in the sale of intoxicating liquors, etc., is untrue. The return also states that the affidavits of some 30 or more persons, residents of Burleigh county, were used on the application, but it makes no reference to their contents. The remainder of the return is devoted mostly to showing that the court exercised its legal discretion in denying .the change, and in setting forth its construction of the law regarding a change of the place of trial in criminal actions. In my opinion these affidavits do not meet the allegations supporting the application fully, and that the statements contained in such affidavits coming as they do from the defendant and another in a similar position are entitled to very little weight. Many of the statements are mere evasions of the 'Attorney General's allegations. The fact that McGillis has been defeated for office in the city of Bismarck is *765immaterial when used to show that an impartial jury can be obtained. The city of Bismarck is 'but a small portion of the county of Burleigh, and, if such statement is entitled to any consideration, it can only apply to jurors drawn from the city of Bismarck. Patterson does not state what offices he has been defeated for, nor in whait part of the county, but it does clearly appear that he was -chairman of the board of county commissioners and McGillis sheriff of the county at the time they were claiming to be without political or other prestige. The statements of Dullam’s affidavit are immaterial, and those of the 30 citizens cannot be considered because we do not -know, and have no means of knowing, what they contained.
The order denying the application of the Attorney General recites that it was entered upon the affidavits of Andrew Miller on behalf of the state, and those of McGillis, Patterson and Dullam on behalf of the defendant, and makes no reference to the -court having considered any other evidence or facts. The return is most carefully and ingeniously draiwn, and is in the nature of a special plea. The quotations from the affidavits submitted by the defense in a very large degree evade the issue. As I have previously indicated, they are largely devoted to allegations that the parties named have not at all times for many years been engaged in violations of the law, or that their influence is not the leading influence in the town, or'county, or that it has been exaggerated by the Attorney General. If the judge of the district court was at liberty to consider his own knowledge of conditions, -the order does not state that he did so, or disclose what his knowledge was -other than as derived from the affidavits mentioned. I am- strongly impressed that, when the Attorney General in his application makes out a -case for the change of the place of trial of a criminal action, - it is mandatory upon the court to grant it. The English authorities cited in the case of Barry v. Truax, 13 N. D. 131, 99 N. W. 769, 65 L. R. A. 762, 112 Am. St. Rep. 662, are not accessible, but -the opinion in that case was written after a most searching and careful examination of all authorities bearing on the subject, and, if I read it aright, the court there found that by the common law of England on the application of the Crown or the Attorney General a change of the place of -trial was granted as of course. It is also found that the common law was in force in such *766■proceedings in this state except in so far as the procedure was regulated by statute. The statute does provide for an application by the State’s Attorney, but it does not pretend to regulate the procedure on the application of the Attorney General. Section 10320, Rev. Codes 1905, reads: “The procedure, practice and pleadings in the district courts in this state in criminal actions or in matters of a criminal nature in matters not expressly provided for in this code shall be in accordance with the procedure, practice and pleadings under the common law.” The omission of the Legislature to make provision regarding the change in the place of trial on application of the Attorney General doubtless occurred for the same reason that so few authorities are found relating to a change on his application. It is stated in the Barry case at page 146, where it is said: “It is true that most of the reported cases on this subject are where the application was by the defendant. The reason for this is found in the fact that the Crown’s right was an admitted one, whereas that of the defendant rested upon an exercise of the court’s discretion, and the latter was therefore most frequently the subject of judicial inquiry. The Crown’s right was seldom, if ever, challenged, and no case has been cited or found by us where it was denied.” In this country the statutes of many of the states fully regulate the procedure. Likewise many of the statutes limit the right to a change of the' place of trial from the county where the offense is charged to have been committed to the defendant, unless on the application of the state he waives his right to a trial in the county. For this reason a large proportion of the authorities cited in the majority opinion are not relevant. The Kent case is an authority only when the defendant makes the application. There is a distinction where no specific regulation is imposed by the statute between applications on the part of the defendant and those made on behalf of the state. If the granting of the change on the application of the state rests solely within the discretion of the trial court, in many counties where criminal statutes are in disfavor and are ignored by the people and the officials, the discretion of the trial judge in passing upon such applications is in practical effect non-reviewable, as follows from the majority opinion, and the state might as well abandon all attempts to protect the lives, the liberty, or the property of its subjects in such counties and submit at once, and as *767gracefully as possible, to the domination of the criminal and lawless elements in some localities. I cannot agree that the rights of a single individual are any more sacred than are those of the people. The object of all statutes providing for a change of the place of trial is to secure justice and to guard against injustice, and it was never contemplated that the laws should be perverted to deny justice or protection to the sovereign people of the state by reason of local prejudice preventing the election of ¡unbiased and fair officials whose duties it is to administer and execute the criminal laws. No court ought to place any such construction on our system of criminal procedure, unless the legislative branch of the government has made it clear -by express language that it should do so, and even then i.ts power might be questioned.
A statement in a paragraph of the return not heretofore referred to and not mentioned in the majority opinion requires notice. I quote: “That respondents are fully convinced and believe from their observations and knowledge of the situation existing in Burleigh county, N. D., wherein said action of the State of North Dakota v. Duncan McGillis is now pending, that both parties thereto may and will have a fair and impartial trial before the average jury that would be procured in such county.” It is apparent that this statement is intended to .bolster up and strengthen the conclusion of the district judge and the order denying the application for a change of the place of trial- It indicates that in reaching his decision he did not confine himself to a consideration of the evidence submitted by the parties, but that he also proceeded upon the theory that he might legally consider his own knowledge of the situation existing in Burleigh county. I do not attempt to discuss the correctness of this position, because it is unnecessary to do so, but I am satisfied that if he has a legal right to take into consideration the results of his own observations and his own knowledge, and render a decision either wholly or in part based upon his observations and knowledge of conditions without disclosing, either in the order denying the application or in his return, the extent and character of such knowledge and observations, his order is as much nonreviewable as though the statute or Constitution had made it so in express language. This court can never in such case determine to what extent the decision of the trial court was -predicated upon its undisclosed knowledge de*768rived from sources independent of the evidence submitted by the parties. In most cases the trial court is bound to judge of the application as well as of the adequacy of the defense by a consideration of the evidence presented. See Ruff et al. v. Phillips et al., 50 Ga. 130; Scroggins v. State, 55 Ga. 380. And to admit that that court may take matters outside of the record, information obtained from whatsoever source, into consideration in arriving at its decision, or to hold in this case that there was not an abuse of discretion, when the fact that the court did not take such matters into account, as disclosed by his return, is not to hold that a change of the place of trial rests upon the sound legal discretion of the lower court, but is, in effect, to hold that in every instance where that court says it took into consideration evidence outside of the record, and fails to disclose the substance thereof, its decision is final, and that this court in such instances ceases to be a court of last resort, but that the district court, by its own act, constitutes itself the final arbiter of the rights of the public. This court can, in the presence of such a statement in a return, never say that the trial court abused its discretion. Had the order denying the application or even the return included a statement of the facts claimed to be within the knowledge or observation of the trial court relevant to the matters at issue, a different question would be presented. It would then be possible for this court to pass upon the exercise of the discretion of the trial court, but if that court can, as in effect follows from the majority opinion, determine such an application upon the knowledge possessed by the judge, and not imparted to him officially or in the shape of evidence the nature of which is not disclosed in the record made, it may be seriously questioned whether, in its supposed power to review the discretion of that court, this court may not, and should not, call into exercise the result of its own observations, and take judicial notice of facts transpiring in Burleigh county relating to the trial of' those charged with violating criminal laws, the rarity of convictions even on conclusive evidence, and of facts and matters occurring at and relating to such trials in that court which are, and have been for many years, notoriously public, and of the present and past attitude of the public toward the subject.
In conclusion, I am satisfied that, if the writ carrying the change should only be granted on an abuse of discretion being, shown, the *769return is inadequate, and fails to meet the showing made by the Attorney General on behalf of the state, and that, in any event, on the application • of the Attorney General and a case being made, the change should be granted as of course.