(dissenting). I dissent. At the time the original application in this matter was presented to this court I was of the opinion that this court did not possess, under the Constitution, the requisite original jurisdiction to deal adequately with the matters presented in the complaint. The matter of jurisdiction required decision then if the court was to issue the order prayed, for; for the plaintiffs requested that a restraining order issue at once which would have the effect of removing Halldorson, the receiver appointed by the banking board, and of placing the bank in the control of the public examiner. It was also asked that the banking board be immediately restrained from invalidating postdated checks as collateral security. This restraining order was asked for without notice and upon an ex parte application. It appeared clear to me that it should not issue unless this court was possessed of the requisite jurisdiction not only to disturb the existing status to the extent requested, but to determine fully the merits of the controversy foreshadowed by the complaint. I was of the opinion that this court did not possess, under the Constitution, the requisite original jurisdiction, and further reflection has confirmed that opinion. The majority of the court, however, assumed jurisdiction and issued the order. That action brought the matter here for such future proceedings as might be deemed appropriate. It was a justifiable assumption at the time that, upon the return of the order to show cause, the temporary order would be dissolved, if sufficient showing were made by the respondents to justify them continuing the course they were pursuing; or, if not, that it would be continued pending a trial of the *493issues 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 ashed 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 Oass 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 *494the 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 subprena 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 ponding 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 view's 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 *495court 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 jurisdiction 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 appropriate 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 accoimt 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*496tutions 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*497xogative 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 appoint 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 hold 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 tin; 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 *498rule of conduct for all election officers in the state, though the- case in which they arise may affect only the nomination for a local office. . . . In the Rinder Case the question whether the certificate issued to Rinder or the one afterwards issued to Packard by the canvassing board is controlling upon the county clerk in printing the ballots is considered a question within the original jurisdiction of this court; but this court will not go into the question as to which candidate received the most votes either by counting the ballots or by taking other testimony.” In Judge Winslow’s opinion in the same case, at a later stage of the proceedings, it was explained that (page 677), “if original jurisdiction were to be assumed for this purpose, the question then presented itself whether the question as to whether Rinder or Packard actually received the more votes, though a mere local controversy, should not be also entertained and decided as ancillary to the main question. The proposed action was an action in equity, and the proposed complaint alleged that Rinder in fact received the greater number of votes. This allegation might well be put in issue. No reason was perceived why, if the action were allowed to proceed as an action in equity, Packard should not be interpleaded for his own protection, and be entitled to plead and prove that he himself received the greater number of votes, and thus convert the action substantially into an election contest over a nomination for a local office. If this were to be done for one, it should be done for all in a similar situation, and thus the court would in effect become a tribunal for the settlement of all contests over primary nominations for all offices, state or local, or, in other words, an appellate canvassing board for the entire state.” Then follows an explanation as to why the court declined to entertain the proposed equity action but did direct the issuance of an alternative writ of mandamus. It decided only the question upon which jurisdiction was based. State ex rel. Rinder v. Goff, 129 Wis. 668, 672, 677, 9 L.R.A.(N.S.) 916, 109 N. W. 628.
I am satisfied that the wiser course is that indicated in the Wiseon? sin case cited. It would enable this court to determine questions which are in fact publici juris, without the complications arising out of litigation in which private rights are vitally concerned; and it would properly relieve an appellate court of the necessity for determining, originally, questions of fact except such as may be necessary to a deci*499sion of questions of public importance involving tbe governmental franchise. Furthermore it would be more consistent with the spirit of the constitutional provision which precludes jury trials in this court, and which authorizes this court to send questions of fact to the district court for trial. N. D. Const. § 87.
In another Wisconsin case in which the prior decisions of that court —and there are many—relating to the question of jurisdiction were reviewed (State ex rel. Bolens v. Frear, 148 Wis. 456, L.R.A.1915B, 569, 134 N. W. 673, 135 N. W. 164, Ann. Cas. 1913A, 1147), certain general propositions for which the decided cases are thought to stand are stated. Among the negative propositions said to be established is this: “(2) A case involving a mere private interest, or one whose primary interest is to redress a private wrong, will not be entertained.” There can be little doubt upon the record before this court in the present ease, that the primary purpose of this action is to redress a private wrong, and that it falls directly within the class which the above authority says will not be entertained. It will be noticed that the judgment here provides even for the taxation of costs in favor of the so-called relators, thus recognizing the private character of the litigation.
The majority have adopted a peculiar style of reasoning upon this question. A number of cases are cited which were decided by 'this court upon original application of suitors; such, for instance, as cases involving the constitutionality of laws or the propriety of a given course of ministerial official conduct, generally involving questions of statutory construction. It is, of course, well known to the majority that applications are frequently made to this court where the members have the gravest doubt as to whether the controversy justifies its interposition by prerogative writ, and that in such cases it has become the custom to reserve all questions of jurisdiction. And they are also familiar with the further fact that in the great majority of such cases opposing parties and counsel were equally interested in obtaining a decision of the questions involved, and realized that, until decided by the opinion of this court, there could be so satisfactory determination of the matter. In such situations the cases are of no importance whatever as precedents for the proper exercise of original jurisdiction.- But, on the contrary, they may and do represent only the extent to which this court will go in the interest of practical expediency. The majority *500know full well that, in several of these cases which are cited as precedents, the deliberate judgment of the court has been that the case did not present a proper appeal to the original jurisdiction of this court, because involving no question piiblici juris in any proper sense. Judicial expediency at once gives way when a party comes- in relying upon the constitutional delegation of original jurisdiction to the district courts. In no case cited, and, I confidently assert, in none that can be found, has a court of appellate, superintending, and prerogative jurisdiction, only, interfered at the instance of private suitors to change an' existing statute ex parte, and prevent executive officers of the state from performing what they conceive to be their official, duties under the statutes.
Eespectful deference to the views of the majority on the question of jurisdiction, however, requires a further discussion of the interpretation of the statute (chapter 53 of the Laws of 1915), which give rise; to the alleged conflict of authority between the banking board and the public examiner. I have no desire to treat this case as turning upon any view as to jurisdiction merely, but in so far, under my views of the case, as the other questions may properly be considered, I deem it a duty to express an opinion. The matter is here for determination. The issue now in hand is one of law,
i I have not the least doubt that the banking' board, under our statutes, has authority to appoint a receiver for a bank, who, when appointed, may hold possession of the bank until he is succeeded by a receiver appointed by a court or removed by the authority that appoints him. I disagree entirely with the majority in the construction of chapter 53 of the Session Laws of 1915, wherein they hold that chapter to repeal by implication those provisions of §§ 5146 and 5183, Compiled Laws of 1913, which specifically authorize the banking board to appoint receivers. Chapter 53 of the Session Laws of 1915 only purports to amend one section of the Compiled Laws, and that is § 5189, which defines insolvency. In the amendment the definition of insolvency is in no way changed, but additions are made to the section with respect to the procedure upon insolvency. Eor instance, immediately after the definition, it is provided, “But its property shall not bo subject to attachment or levy, nor shall a receiver be appointed during such reasonable time as the state examiner may require for examination.” This *501limitation does not apply in the instant case, for the reason that the receiver was not appointed during any reasonable time required for the examination, but after the examination, such as it was, had been completed. Furthermore, the very language of the limitation implies the existence of a power outside the examiner to appoint. This is the power that is not to be exercised during the time he requires for examination. In the following sentence it is provided that if, after the examination, the examiner shall deem best, he shall, with the approval of the state banking board, appoint a receiver, who shall take possession,” etc. This clearly does not indicate a desire on the part of the legislature to supplant the appointing power of the state banking board with only an optional power in the state examiner. It will be noted that all the discretion the state examiner has in such matters is to be exercised with the approval of the banking board. If he is precluded from coming to an independent decision regarding the appointment of a receiver, is it reasonable to suppose that his nonaction was intended to detract from the power expressly given to the banking board in other sections of the Code ? If the views of the majority are correct, the legislature has said to the examiner: “If you conclude not to appoint a receiver your determination is final, but if you decide to appoint one you must appeal to the banking board and first obtain their approval.” And the only reason for concluding that the examiner’s negative determination is final is the giving of the subordinate, conditional authority. The reasonable construction, as I view the statutes, is that the banking board has the same authority with regard to the appointing of receivers as was previously vested in it by the two sections referred to, except that it cannot be exercised during such reasonable time as the examiner may require for examination. And, at the conclusion of the examination, the examiner may appoint a receiver with the approval . of the banking board, or the banking board itself may appoint one under § 5183 or § 5146. It seems to me that the whole theory of the regulatory statutes is ignored by the majority. The statutes throughout make the banking board the responsible regulating agency. Tim Act of 1915 fully recognizes this in subordinating the examiner’s powers of appointment to the will of the board. I confess my inability to follow the reasoning of the majority in support of the repeal by implication of §§ 5146 and 5183, though their construction is said to be so *502plain that “he who runs may read.” The foregoing is not to be taken as an expression of approval of the action taken by the banking board in this case. That question, as will presently appear, hinges on the determination of questions of fact, which cannot, in my judgment, be determined with any degree of propriety upon the record now before this court.
Denial of judicial due process.—The question of transcendent importance in this case is not the question of jurisdiction, or the related matter of the construction of the statute. This case has been heard upon affidavits, merely; and that over the protest of defendants who were all the time insisting upon their constitutional right to a trial according to due process of law, before the rendition of a final judgment. But the majority denied the requests, considered the case submitted, and proceeded to render a final judgment involving the decision of the issues of fact. Compared to a denial of judicial due process, all other questions are as chaff to the wheat. It seems to me that this proceeding is most extraordinary. I have searched in vain for and precedent for such action. My researches have failed to bring to light any case where a court of last resort has held to be proper the rendition of a final judgment based upon a trial by affidavit had upon the return of an order to show cause. On the contrary, it appears that the very few times such proceedings have found their way to appellate courts they have been promptly held to be erroneous. Collins v. Carr, 112 Ga. 868, 38 S. E. 346; Chicago, P. & St. L. R. Co. v. St. Louis, P. & N. R. Co. 79 Ill. App. 384; Weaver v. Toney, 107 Ky. 419, 50 L.R.A. 105, 54 S. W. 732; State v. Booth, 28 La. Ann. 726; Whitehurst v. Green, 69 N. C. 131; Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. 79; Gross v. Wieand, 151 Pa. 639, 25 Atl. 50; Hornesby v. Burdell, 9 S. C. 303; Adams v. Crittenden, 4 Woods, 618, 17 Fed. 42; Day v. Snee, 3 Ves. & B. 170, 35 Eng. Reprint, 443; 22 Cyc. 952. High, Inj. § 1591, says there is no precedent for granting a permanent injunction on affidavits. His statement seems to be amply warranted, but it must now be qualified.
The following quotations taken from the cases cited will illustrate the soundness of the foundation upon which this dissent is based. The supreme court of North Carolina in the Whitehurst Case, supra, says:
“Making an order, decree, or judgment, by whatever name it may be *503called, for a perpetual injunction against issuing an execution on a judgment at law, heard upon a motion and affidavits, is a proceeding without precedent in the annals of the judicial procedure in any court claiming an English original. . . .
“Our surprise that the learned judge should have granted a perpetual injunction on motions and affidavits, is only equaled by our surprise that the learned counsel should have made the motion.
“. . . It may be that the order for a perpetual injunction meets the merits of the case, but that cannot warrant a departure from all forms and precedent, either under the old or the new mode of procedure.”
In Gross v. Wieand, 151 Pa. 639, 25 Atl. 50, the supreme court of Pennsylvania, in speaking of the procedure in the case where the trial court, upon application for preliminary injunction, had considered tha cause submitted and made a final decree on the merits in favor of the plaintiff, said (page 646) :
“Of course it was premature to decide the case as upon final hearing, and to grant the permanent relief prayed for in the bill, upon such a state of the pleadings and in such a condition of the proofs.
In Hornesby v. Burdell, 9 S. C. 303, the court said (page 307) :
“While it is undoubtedly true that a circuit judge may, in a case of which he has jurisdiction, upon a proper showing, grant an interlocutory or temporary injunction, at chambers, to continue until the final hearing of the case on its merits, it is very clear that a perpetual injunction cannot be granted until the case is fully heard upon its merits and the issues raised determined by the tribunal having authority to make such determination.”
Mr. Justice Wright, in the Illinois case cited (79 Ill. App. at page 385), says:
“Where issues of fact are formed in the case, it is the right of the parties, unless waived, to have the evidence heard, either by deposition or orally, in open court, and thus be secured in the right of cross-examination of the witnesses. . . . This cause not having been submitted to be heard on the merits, the court was not permitted to and did not enter a final decree.”
In Federal court case (Adam v. Crittenden, 4 Woods, 618, 17 Fed. 42), it is said (page 44):
*504“So that it may be considered that up to the final decree all the parties and the judge himself held and treated the first injunction as temporary only. The terms of the injunction are to that purport. At the first hearing it does not appear that any evidence was taken or considered. It was neither regular nor proper to have issued a perpetual injunction at that stage of the case.”
Of course if it is proper practice to determine the merits of an injunction suit in this court by proof limited, over the protest of one of the parties, to affidavits, it would clearly be the- proper practice in the district courts. A parallel, hypothetical case may serve to emphasize the erroneous character of this practice. (Both parties, of course, have recourse to the same remedies and practice.) Suppose that in the matter in question here the governor, acting as chief executive and member of the banking board, had instructed the bank examiner to take charge of the bank, and that the other members of the banking board had, upon the examiner’s report, deemed it proper to appoint a receiver, who, when appointed, was refused admission to the bank by the examiner acting upon instructions from the governor. Assume an action to have been begun in district court to restrain the examiner from interfering with the attempt of the purported receiver to obtain possession of the bank, followed by the issuance of a preliminary injunction and a hearing upon affidavits, only, upon the return day of the order to show cause. The matter stands at issue on questions of fact, and the examiner (who has already been ousted by preliminary injunctional order), requests a trial. The district judge tells him he may file some affidavits instead, and then, in the course of a few days, enters a judgment permanently enjoining him. Perhaps the majority of this court.would be prepared to say that a trial so limited is consistent with due process. I must confess I scarcely think so. The authorities above cited speak with one voice against it. But yet such is the practice sanctioned in this case.
To my mind, the error is fundamental and far reaching. It strikes at the very foundation of judicial due process of law. Can it fairly be said that a hearing at which no witnesses were sworn in open court on behalf of the plaintiffs, at which no opportunity was afforded for cross-examination of the persons whose ex parie affidavits the court takes as proof of the facts alleged in the complaint, and at which the defendants *505are denied the privilege of subpoenaing witnesses in their behalf, .is consistent with the law of the land, as mentioned in .Magna Charta, and which, with us, is commonly expressed as the law that “hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial ?”
I am sure that this court would not hesitate to condemn the exercise of arbitrary power by the other departments of government, and this fact affords a weighty reason why it should not transgress beneficent constitutional safeguards. Justice White, now Chief Justice, of the United States Supreme Court, has given expression to the seriousness of the question in a way that surpasses other attempts that might be made in the same direction. In the case of Hovey v. Elliott, 167 U. S. 409, 42 L. ed. 215, 17 Sup. Ct. Rep. 841, it was held that due-process gives even the defendant in a contempt proceeding the right to be heard in his defense, and that the court had no power, as a punishment for contempt, to refuse the person in contempt the right to defend the main case upon the merits. In the course of his opinion, he-said (pages 417, 418):
“Can it be doubted that due process of law signifies a right to be heard in one’s defense? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative to the Constitution ? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which, if done under express legislative sanction, would be violative of the Constitution ? If such power obtains, then the judicial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power to disregard it. If such authority exists, then, in consequence of their establishment to compel obedience to law and to enforce justice, courts possess the right to inflict the very wrongs which they were created to prevent.”
Cooley on his work on Constitutional Limitations, 7th ed., has said (page 526):
“In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suf*506fered to produce his proofs. The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law.”
And certainly what the legislature cannot do in contravention of judicial due process does not become legal, constitutional, or just when done by a court.
In recognition of the salutary constitutional requirement of due process, be it said that the legislature, in so far as it has spoken upon the practice in connection with injunction and the order to show cause, has made provision in every way consistent with the full enjoyment of the constitutional rights of suitors; Code Civ. Proc. art. 3. In §§ 7528-7536, Compiled Laws of 1913, ample provision is made for the issuance of preliminary injunctions upon affidavits, and for a subsequent hearing, also upon affidavit, upon motion to vacate. Counter affidavits are also allowed. But it is expressly provided (§ 7530) that a period longer than six months must not be allowed to elapse “before the hearing of the merits of the case shall be had for the purpose of deciding the question as to the justice or necessity of malcing the temporary restraining order permanentIt is too elementary to require discussion that, where issues of fact' are joined in an equity action praying for a permanent injunction, the hearing of the merits involves the trial of the facts in the ordinary manner. The only hearing that there can be upon the order to show cause in such matter (Comp. Laws 1913, § 7533) is a hearing upon the question of the temporary injunction, and this may be upon affidavit. The legislature has not attempted to prescribe any new or different mode of trial applicable to an injunction suit than that which originally obtained. This court should not lend its sanction to a mode of trial that could not constitutionally be prescribed by the legislature.
The issues in the case were important. We know not what the evidence might have been. No emergency can justify the denial of a trial in a court of justice. If an exigency arises, final judgment might better be suspended than rendered upon insufficient hearing. I can con*507ceive of no judicial function calling for greater delicacy in its exercise than passing judgment upon the good faith, the motives, of even the wisdom (if this is ever permissible) of executive officers in the exercise of executive or quasi judicial powers, and, speaking for myself, I shall positively refuse to do so except after a full hearing at which opportunity shall be given to swear and examine witnesses in their behalf, and to cross-examine the opposing witnesses. A man who puts the state upon proof of the commission by him of the slightest offense has this constitutional measure of protection, and I know of no reason why it should be denied officers elected by the people, who are accused of the grave offense of wilful and wanton breach of official duty. It is no answer to say that a trial of the very issues raised by the complaint and the answer might, of itself, have the effect of inflicting irreparable injury upon the plaintiffs. If considerations of this character are once made controlling to the extent of precluding trials, then government by injunction will become the accepted rule, instead of the odious exception. To dispose of this case without trial, on the supposition that a trial itself would deprive the plaintiffs of the benefit of a favorable decision, if one were ultimately reached, is of course to prejudge the entire merits of the controversy, or rather to dispose of the case as though the merits lay all on one side, and this without a full inquiry as to whether such be the law and the fact. Courts of-equity have exceedingly broad powers and flexible'remedies for conserving any subject-matter in litigation before them. This should make them all the more reluctant to judge of the merits of a controversy without the fullest opportunity for a hearing.
Perhaps the defendants merit the censure expressed by the majority; perhaps they have been guilty of the matters found against them; but I cannot find it in my conscience to say so judicially in the absence of a trial conducted according to the principles of Anglo-Saxon jurisprudence.
So far as the plaintiffs are concerned, it is to be hoped that the condition of the bank is such as to justify the reopening which closely followed the announcement of the majority opinion. Possibly an immediate trial on the merits might have given added assurance to the correctness of findings which are now based on a showing only sufficient for a prima facie case required for a temporary injunction.
Filed December 6, 1922.Viewing the matter as I do, I can only regard the final judgment as being void for lack of a trial conducted in accordance with, due process, of law. The final judgment should be set aside, and the case should either be held in abeyance upon proper application or referred to a district court for trial on thy merits.
Christianson, Ch. J., concurs.