(dissenting further). Since the foregoing opinion was written, the writer of the original majority opinion has deemed it necessary to supplement his opinion at some length. The supplement, like the original opinion, it seems to me, largely evidences its own error ; but there are some statements in it regarding the procedure which might be thought to disagree with some statements in the foregoing dissenting opinion. I deem it proper, therefore, to restate some of the facts, as they may conduce to a more accurate understanding. It is stated by Judge Bronson: “In this regard, however, the respondents in this case had full opportunity to take evidence, and full opportunity to orally examine and orally cross-examine all witnesses that they might have desired to produce.” It is stated in the original opinion that “pursuant to the order of this court, the parties have been granted until October 23, 1919, to make up and complete the record in this matter.” If these two statements be linked together, it might readily appear that full opportunity was accorded for a hearing, but such is not the fact. The order entered on the day of argument is not as stated in the majority opinion. Nothing is said in the order as to any time limit for completing the record, nor does the order relate to the completion of the record at all. .It only provides for the submission of additional affidavits if either party should desire to do so, and, as stated in the foregoing dissenting opinion, it was distinctly understood by the members of this court that, in entering the order referred to, it should not be considered as denying the application of the attorney general, requesting an opportunity to cross-examine witnesses and submit testimony in case the court entertained jurisdiction and determined to go into the controversy of its merits; and that such request should be dealt with in the future in the light of such facts as might be developed by the affidavits filed. The case was never set down for hear-*509lug upon the merits at all. The only hearing conducted was upon the ■order to show cause, and the matter has never, at any time, been heard ■on its merits in this court or any other court, or before any referee. Neither was it ever set down for any such hearing. Just before the majority opinion was filed the last request of the attorney general for a hearing was denied by the majority.
Obviously, then, it is idle to talk of an opportunity for a hearing .and for taking depositions. Until this court should take some definite action upon the application of the attorney general, it could not even be known by that officer before what court the hearing would be had, as this court has authority to refer questions of fact to a district court for trial (Const. § 87). Consequently, he could not know whether or not the witnesses whose testimony he desired could be present, or whether it would be either necessary or permissible for him to resort to •depositions. Until the attorney general knows before what court the facts are to be tried, how can he know what witnesses can be compelled to respond to subpoenas (Comp. Laws 1913, § 7876) ? or in what instances depositions may be resorted to, as the latter are only admissible in the instances provided by statute (§ 7889)? Furthermore, until that action were made known, how could the defendants be assured of an opportunity to cross-examine the witnesses whose affidavits the majority considers proof? Subpoenas by statute (§ 7873) are required to apprise the witnesses of the particular time and place that they are required to attend. Pray tell, at what time and place a witness could have been subpoenaed to enlighten the supreme court of the state of North Dakota upon the issues of fact in this case, when the defendant’s request for a hearing was not definitely acted upon until the filing of an opinion disposing of the case upon the merits of the very issues to be tried, and when and where would the majority have had the witnesses appear ? ■ They have never said. Perhaps the attorney general was remiss; perhaps he should have anticipated that this illegal procedure would be indulged in. But I prefer to think that he was rather justified in assuming that the procedure universally recognized as constitutional and proper would be observed.
It is suggested that the method of taking testimony by affidavit is recognized by § 7883, and the broad intimation is that the affidavits, 'then, were necessarily evidence in a legal sense in this case. Just four *510sections removed from the section cited, § 7887, expressly limits the use of affidavits by providing that they may be used “to verify a pleading, to prove the service of a summons, notice, or other process in an action, to obtain a provisional (not final) remedy, an examination of a witness, a stay of proceedings, or upon a motion and in any other case permitted by law.” The majority, of course, are unable to support a trial by affidavits as being permitted by any law existing outside the majority opinion in this case, and it is perfectly obvious that the legislature does not recognize the use of an affidavit as proof sufficient to support a final judgment in a case where issues of fact are joined.
In view of the criticism for not having fully expressed the foregoing dissenting views in conference, it may not be improper to review the manner in which the decision was reached and announced. The lengthy and exhaustive majority opinion, prepared by Mr. Justice Bronson, was circulated on the evening of October 23d, at the conclusion of a day upon which oral arguments had been heard in three causes. The following day, after the hearing of oral arguments in three causes, and in the latter part of the afternoon, a conference was called at the suggestion of the writer of that opinion. The time between the argument of this case on the return day, October 15th, and October 23d, which was the last day set for the filing of additional affidavits,' had been largely consumed in the hearing of causes. It will thus be seen that very little time was available within which to give judicial consideration to this matter. But at the time of the conference I was of the opinion that it was improper to dispose of the case in the manner indicated in the majority opinion, and the dissent then announced amply indicated that fact. The views of the dissenting members on the jurisdictional question wei’e already well known to the majority, and on the question of the hearing the dissenting members at the same conference voted against the denial of the attorney general’s application. If the majority members of the court cared for a more adequate expression of the reasons leading to that dissent, they might readily have secured this advantage, if advantage it be, by waiting a few days before filing the opinion. Up to that time only twenty-four hours had elapsed since the expiration of the time for filing affidavits, and, under the preliminary order issued, the bank was in the possession of the same parties who were entitled to continue in possession under the majority opinion. *511So it is apparent that no great damage could have resulted from the talcing of a little time to give judicial consideration to the views of every member of the court before the filing of opinions. Whatever credit attaches to the prompt despatch of the decision in this case the majority is entitled to receive. Indulgence, however, for one week or less would have given them the full benefit of the foregoing dissenting views.
Filed November 22, 1919.The foregoing statement is not written to provoke further controversy nor as an extension of the dissenting opinion, already perhaps too long. It is written solely for the purpose of presenting in a more de* tailed way than originally deemed necessary some of the facts in this case.