The dissenting opinion of Justice Birdzell was circulated on October 31, 1919, seven days after the decision of this court, and the final determination of this case. The dissenting opinion of Justice Christianson has this day, November 22, 1919, been circulated.
In discussing the powers and the jurisdiction of this court, Justice Birdzell has brought into his opinion, as a basis for some of his reasoning, ex parte applications made by the attorney general, after this court assumed original jurisdiction. It has heretofore been considered not necessary, in determining the questions in this case, to make mention of these applications; they now, however, will be mentioned and discussed. After this court issued its original order restraining the defendants from exercising unlawful and arbitrary power, as alleged in the petition, and as found, the attorney general made an application (October 8, 1919) to retain certain papers that had been seized by him and his assistants, upon the ground that they desire to use the same in certain criminal proceedings then pending. This application -was promptly denied; it was evidently an attempt to embarass this court in the consideration of this case. The attorney general had, and still has, full opportunity, as he well should know, to secure such evidence as otherwise fully provided for by law. The attorney general then applied (October 11, 1919) for permission, in effect, to proceed with the action in the district court, again evidencing an attempt to embarrass this court in its consideration, knowing full well that the action in the district court was based entirely upon the proceedings taken by him and the banking board. This application was denied. Upon oral argument the respondents, through the attorney general (October 15, *5281919) again sought delay by seeking the remand to the district court, for purposes of taking testimony. This again was evidently, on its face, an attempt to secure delay.
There was then presented and submitted to this court legal questions •of the statutory power of the respondents, unquestioned, uncontroverted, and concerning which no further evidence was necessary; namely, the statutory authority of the respondents under the specific statute upon which they relied to do the acts questioned. This' application, therefore, could serve only to delay the determination of this question of power, and thereby perhaps, through delay, render effective the action taken by the respondents, even though without power and arbitrary. Mere delay in itself, under the circumstances of the case, would be as effective in destroying the relator bank, and the powers of the state examiner in regard thereto, as perhaps the actions as taken by the respondents. This court, instead of providing for sending this case back to the district court to take oral testimony, on the same day (October 15, 1919), of its own order, granted to the respondents eight full days to submit any other records or evidence before this court; not a scrap of paper of any kind was filed by the respondents to show any facts of any kind or character, which would even offer or give any indication to this court that they possessed any other evidence or could secure any other evidence than that which was submitted by them upon the oral argument. On October 21, 1919, two days before the expiration of the time when the respondents could file or submit additional evidence, another application by the respondents was made, in effect, asking for further delay and permission to take certain testimony of some witnesses whom they asserted were unwilling to testify. Such application mentioned neither the witnesses nor the nature of the testimony sought to be secured. They sought to take oral testimony before some court; the application was principally grounded upon the statement that they desired to use this testimony, so to be secured, in certain other criminal proceedings pending. This application was not. granted. The dissenting members of this court knew of all these acts and proceedings by the attorney general; no motion was made by them or action taken seeking to secure further additional oral testimony in this case. This court well understood and perceived the evident attempt being made to delay the determination of this cause, and to use this court as an adjunct *529improperly, in connection with certain criminal proceedings pending in a district court.
In the dissenting opinion of Justice Birdzell, an attempt is made to build up an argument that this proceeding did not conform to the law, for the reason that the respondents were not accorded an opportunity to take or submit oral testimony, with the right of cross-examination. The dissenting opinion of Justice Christianson likewise so contends. This argument, upon the real facts of this case, is supported neither upon principal nor authority. It is, in my opinion, merely an attempt to justify the arbitrary action and the proceedings of delay evidenced in this record, from beginning to end, on the part of the respondents. Well do the dissenting members of this court recognize and know that no oral testimony of any kind upon this record was necessary so far as the question was involved of the statutory power of the respondents to take the action that they did. The respondents asserted the right to act under a specific statute; they claimed no power otherwise. This ■statute, by this court, was determined to be repealed. This left tho respondents without power.
Upon this construction alone, this case was determined against the respondents as far as the issuance of the writ herein is concerned. The dissenting opinions, therefore, with reference to the question of oral testimony and the right of cross-examination, affect only that portion •of the majority opinion which, assuming for purposes of argument that the respondents did possess the statutory power for which they contended, characterizes and determines the acts of the respondents so taken as arbitrary and illegal.
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.
Under the statute of this state there are three methods of taking the testimony of a witness: (1) By afiidavit; (2) by deposition; (3) by •oral examination. Comp. Laws 1913, § 1883.
After this case was at issue, and even before the oral argument of this cause, the respondents had full opportunity and full right to take any evidence desired by depositions, before any judge or clerk of the *530supreme court, or district court, or before other officers, including notaries public. Comp. Laws 1913, § 7891. These could have been taken upon commission or notice. Comp. Laws 1913, §§ 7894 and 7895. In the taking of such depositions all of the rights of examination and cross-examination would accrue to the respondents the same as if before any court. These depositions could have béen commenced at any time after the appearance of the defendant in the action. Comp. Laws 1913, § 7890. These rights the respondents had continually until October 23, 1919. The depositions, if so taken, could have been used before this court; they could have been admitted; not only by statute, but under the power of this court. Comp. Laws 1913, § 7889. The very citations, to wit, § 7889, Comp. Laws 1913, quoted by Judge Christianson, show the authority of this court to receive a deposition in .such a proceeding.
The respondents did not choose to even make offer to take evidence by deposition. They did not even offer to produce before this court a single witness; they did not even submit, after October 15th, one single additional affidavit. They sought, apparently, the only course considered available to them, under the circumstances; namely, delay, and a demand for remanding this case to a district court for trial, for the taking of testimony which could as well be accomplished by statutory methods already existing for them.
It is therefore evident how groundless the contentions are that no opportunity was granted to the respondents to take evidence, to examine .and cross-examine witnesses orally.
Chief Justice Christianson speaks of issuing a writ of preliminary order in this cause without notice to the respondents. It is illuminating, indeed, concerning this argument, to view the acts of Justice Christian-son himself in many cases within recent years where he himself has caused or countenanced the exercise of the original jurisdiction of this court, without notice to other respondents who were present in the Capitol building where this court sits.
Concerning the question of original jurisdiction of this court the facts in the record speak sufficiently for themselves. Justice Birdzell, however, would have this court determine only one small question involved in the exercise of such original jurisdiction,—the question of the power of the banking board and of the state examiner,—and leave *531the other questions for the prolonged consideration of other courts to be finally determined by this court in the exercise of its appellate jurisdiction; that is to say, determine the prerogatives of the state, and then, after making such determination in words, set the parties adrift; and, if perchance these prerogatives of the state are jeopardized and made ineffective through delay both as state institutions and as private institutions, then finally answer that the parties nevertheless, have had their day in court; the law finally has prevailed, and the relators finally have received a paper decision through judiciary process, even though, long since the subject-matter involved had been determined alone by the elements of time.
The answer to this sort of argument is the old, well-worn maxim oft repeated and frequently made the basis of complaint concerning judiciary action; namely, “that justice delayed is justice denied.”
The chief justice maintains that chapter 53, Laws 1915, which gave specifically to the state examiner power to appoint a receiver with the approval of the state hanking board, did not repeal the power theretofore possessed by the state banking board alone to appoint a receiver without the initiative action or consent of the state examiner. He argues and contends, through a lengthy discussion, that the well-known case of Toumans v. Hanna affords no inferences such as are drawn by the majority opinion; he refers to the complaint in the Toumans v. Hanna actions; he refers to the action of the senate in the Toumans Bank investigation; he refers to the resolution adopted by the senate, finding in favor of the authority exercised by the state examiner and his actions as taken. The chief justice was not a member of the senate at the time these proceedings took place; the writer of the majority opinion was. Many things and occurrences took place in the senate beyond and in addition to the allegations contained in the complaint before the court; it serves no useful purpose to discuss them at length. The best answer, however, to the entire situation is the suggestion, “Why was chapter 53, Laws 1915, enacted giving the specific power to the state examiner with the approval of the state banking board, if everything in connection with the Touman Bank matter and the activities of the state banking board were considered proper, correctly carried on, and entirely supported by existing statutory provisions?”
The justification for this addendum opinion lies in the importance *532of this cause, its far-reaching results, and in the definite understanding that the judiciary in this state should administer justice not only impartially, but with prompt despatch.
Two cozzrses were open before this court, one which, through the delay of the respondents or through its arbitrary and illegal power, pointed out a way of wreck and ruin concerning the credit of this state, financial institutions, and the safety and trust of depositors in state banking institutions'. The other way lead to the prompt consideration and the prompt despatch of the issues before this court, and to a conclusion which determined promptly that the powers exercised by the respondents were not possessed by law, and, even though assumed to be possessed, were arbitrarily and illegally exercised.
Through the prompt action and consideration given this cause by this court, through its majority members, there has been no jeopardizing of state finances; the powers of the state examiner have been made effective, without injury or destruction to any institutions or parties; the rights of the relators have been preserved and depositors protected. The relator’s bank, and banks similazdy connected, to-day are going izzstitzztions, recognized by the public as solvent, and receiving the confidence of the pzzblie in deposits and in business, greater than ever before. Both zzpon principles of law azzd justice the exercise of the original jurisdiction of this court to its full extent has been fully justified.
No lengthy arguments, through abstruse reasoning, or upon legal technicalities concerning due process of law, oz; upon grounds of narrow construction or deduction, can wipe away or eliminate the bold, clear, and undisputed facts submitted on the record in this case, which require the zzecessity of action. The principles of law involved herein have becozne matters of contention more through the great public interests and the great public impoz’tance involved in this case.
In ordinary eases, time and again, this court has exercised original jurisdiction involving questions of fact, and no difficulty has been met in determining a method for solving such questions of fact. Freely has original jurisdiction in this court been exercised in this state, and very freely indeed have the dissenting members of this court been parties in securing and upholding the exercise of this original jurisdiction for the puz-pose not only of determining matters admitted upon the *533pleadings, but asserting the power and tbe right to determine issues of fact as an inherent power of this court.
Bronson, J.Justice Birdzell has circulated (November 26, Í919) still another dissenting opinion, deeming it necessary, apparently, to add to the already long opinion heretofore prepared by him. Soon wo may expect a daily addition of dissenting opinion; soon we may look for a personally conducted debating school among the members of this court. Although this court has long since entered judgment in this matter, nevertheless Justice Birdzell takes the strange position of treating and stating such judgment to be void, even though rendered by the court of which he is a member. It is peculiar, indeed, that the dissenting members’ of this court, when conference was had at the time this case was determined, should offer no suggestions, should quietly sit by; mum as oysters, and, when asked by a majority member of this court whether they had anything to say, should simply reply by the statement that they dissented and reserved the right to file a dissenting opinion. The whole tenor of the argument contained in the late opinion of Justice Birdzell is one that speaks for delay, and concerns alone questions of practice in cases of original jurisdiction before this court.
One indeed would be constrained to believe, from the argument contained in such opinions, that this case was up for trial before a lower court. When this case was up for consideration before this court all of the issues there presented were for the consideration of this court, not for the consideration of the trial court or any other court. The case was presented to this court upon a petition like a complaint, and upon a return and answer; the issues were framed; the cause was pending; the merits were then here. Upon these merits the parties did submit evidence; well did the respondents realize the necessity of prompt action if the status quo of the relators’ rights was to be preserved ; they had ample opportunity to furnish or submit additional evidence if they so desired. The respondents sought delay, realizing, perhaps, that, if they were without the power in the statute cited by them, the delay Avhich might be occasioned Avould be fully as effective as if they had the power. The dissenting members of this court have now stepped into the shoes of the respondents, and are attacking the jurisdiction exercised and the prompt decision rendered in this case, by ar*534guing and contending that proceedings of delay should have been afforded. This case was set for hearing and determination on October 15, 1919, all of which the parties and the court well knew. It has never been set for hearing and determination on any other day. The reasoning in Justice Birdzell’s opinion is indeed illuminating, which suggests, and even contends, that the parties did not know before what court they were to produce their witnesses.
Upon his present dissent, he is forced into the position of contending for proceedings of delay in a trial or district court to take additional evidence in a case of original jurisdiction before this court, even though the determination of this court, that the respondents possessed no statutory power to appoint a receiver without the initiative act or consent of the state examiner, settled this cause, and obviated the further necessity of taking any additional testimony in any event.
To bolster up their contentions for the taking of testimony before a trial court, and for delay, did they desire an accounting to be taken of every note and obligation of the relator bank, through a long course of accounting in a trial court.
In this cause the determination of the respondents’ lack of power, upon the conceded facts, determines the case against them. In addition, the action of the respondents upon report, inaccurate, false as to the records investigated, and erroneous as to the law applicable, was determined to be arbitrary and unjust. Time was for some court when mere rhetoric and logic based upon an assumed premise sufficed, through the law’s delay and legal technicalities, to defeat justice, no matter how clear the case might otherwise appear; the complaint of the American public, long and persistent has been heard by the bench and the bar of this country; the argument of the dissenting members is the old constitutional argument that the “i’s” must be dotted; that the “the” in front of the word “state” must be stated in an indictment to protect the constitutional rights of the accused. Constitutions were established to protect, not to destroy, people’s rights. In straining over a constitutional argument, the dissenters fail to observe this.
Again, it is well, in discussing fundamental questions of jurisdiction, to refer to the constitutional provision (N. D. Const. § 87) which states that the supreme court shall have power to issue writs of injunction and such other original and remedial writs as may be necessary to *535tbe exercise of jurisdiction and shall have authority to hear and determine the same. Likewise, to § 7340, Comp. Laws 1913, which provides that the supreme court shall always be open for the issue and return of all writs and process which it may lawfully issue, and for the hearing and determination of the same, subject to such regulations and conditions as the court may prescribe. December 6, 1919.
Justice Birdzell has circulated December 5, 1919, a revised copy of the dissenting opinion of November 20, 1919. It needs no further discussion other than stated in the above opinion.