I. Leaving the Nineteenth Century
. . .
C. The 1889 Judicial Article
When our new state needed a Supreme Court, the 1889 Constitutional Convention shaped it like the three-judge Territorial Court, but the justices were to be "elected by the qualified electors of the state at large," rather than appointed.(50) The 1889 Constitution also set basic qualifications for election to the Court: A U.S. citizen learned in the law, at least thirty years old,(51) and three-years residency in the state or territory.(52)
The 1889 judicial article vested the judicial power of the state in the Supreme Court, district courts, county courts, justices of the peace, and other courts that the legislature might create for municipalities.(53) The judicial article gave the Supreme Court power to issue original and remedial writs, to hear appeals "co-extensive with the state," and to exercise superintending control over all other courts "under such regulations and limitations as may be prescribed by law."(54)
50. N.D. Const. art. IV., § 90 (repealed 1976).
[T]he original draft of the constitution was changed so as to make the minimum age limit thirty, rather than thirty-five, in order that Judge Corliss might qualify if elected. At least that is the reason generally given for the change in age requirements, and Judge Corliss was only slightly over thirty years of age when he qualified.
Newton, supra note 5, at 4-5.
52. . See N.D. Const. art. IV, § 94 (repealed 1976). The length of the residency requirement was debated in the Convention.
The [Convention] committee on the judiciary department . . . submitted majority and minority reports. The majority report recommended the establishment of a Supreme Court, to consist of three members, and prescribed that no one unless learned in the law, of thirty years of age, and a resident of the territory for five years next preceding his election, should be eligible to the office. Guy C.H. Corliss, of Grand Forks, who aspired to the Supreme Court, was ineligible, by reason of his residence qualification. He came to Bismarck, together with John M. Cochrane, a notable lawyer of Grand Forks, and they jointly persuaded the delegates to limit the residency qualification to three years. Mr. Corliss was elected to the Supreme bench.
Lounsberry, supra note 1, at 396-97. John M. Cochrane (1903-1904), too, was later elected to the Court, after serving as Reporter for the Supreme Court from 1894 through 1902. See North Dakota Centennial Blue Book 1889-1989, at 465 (1989); Sketch, supra note 2, at 27.
In the Convention debates on the residency requirement, one delegate blamed the change from five years to three on lobbying by an unnamed "gentleman here who desired the change for his own benefit, and not for the good of the State." Official Report of the Proceedings and Debates of the First Constitutional Convention of North Dakota 223-24 (1889). The purpose of the residency requirement was to block "any carpet baggers in our Supreme Court." Id. at 222. After another delegate argued, "What we desire on the Supreme Bench is as much ability as possible," a floor amendment to fix the requirement at three years, instead of five, was adopted by a vote of 30 to 19. Id. at 224-25. After another delegate questioned any need to distinguish between the length of residency for voting and eligibility for the Court, a motion to delete the residency requirement altogether was indefinitely postponed. See id. at 226-27.
53. See N.D. Const. art. IV, § 85 (repealed 1976).
54. See id. §§ 86, 87 (repealed 1976). Section 86, as well as other sections in the 1889 judicial article, may have been drawn from ones proposed by convention delegate Erastus A. Williams in his model draft, File 106, prepared from models secretly supplied to him by persons acting for the Northern Pacific Railroad. See Herbert L. Meschke & Larry Spears, Model Constitution (Peddrick Draft #2, 1889), 65 N.D. L. Rev. 415, art. XIII, §§ 8, 9 at 455, 486 annots. (suggesting that the statement of the Court's powers may have been derived from the proposed Montana Constitution: "Mon., VI.2" and "Mon., VI.3"). See generally Herbert L. Meschke & Lawrence D. Spears, Digging for Roots: The North Dakota Constitution and The Thayer Correspondence, 65 N.D. L. Rev. 343 (1989). "The constitution finally adopted by the convention followed the phrasing of [Harvard Professor] Thayer's draft in many places." Robinson, supra note 9, at 209.