I. Leaving the Nineteenth Century
. . .
D. Our First Supreme Court
The statewide election on October 1, 1889, to adopt the first state constitution also chose the first three justices who took office on November 4, 1889: Alfred Wallin of Fargo, Guy C.H. Corliss of Grand Forks, and Joseph M. Bartholomew of LaMoure.(55)
Justice Bartholomew had a primary part in starting the machinery of state government. When the newly elected state officials gathered in Bismarck on November 4, 1889, they were briefly baffled about how to begin their offices.
After the October election results were certified to President Benjamin Harrison, a formal presidential proclamation of statehood was needed. President Harrison signed the proclamations for both North and South Dakota at 3:40 p.m. on Saturday afternoon, November 2. Secretary of State James G. Blaine immediately telegraphed the news of the signing of the proclamation to Bismarck, advising that "North and South Dakota entered the Union at the same moment."(56)
The official copy of the proclamation reached Bismarck on Monday, November 4, 1889, where the elected state officials waited. Then:
They were confronted by a dilemma as to how they were to be sworn in. The territorial officials had been put out of office by the proclamation creating the state, whereas there were as yet no state officials. Justice Bartholomew solved the problem by sending for a notary public. W.T. Perkins was brought in and administered the oath to Justice Bartholomew.(57)
A newspaper account continued:
Justice Bartholomew . . . then went to the assembly room, where the officers and a number of citizens were in waiting.
[Territorial] Governor [and Governor-elect of South Dakota] Mellette here introduced Justice Bartholomew stating that but one act remained to set the state machinery of North Dakota in motion, and that Secretary Richardson would now read the list of officials who would be sworn in.(58)
Justice Bartholomew then swore in the other first officials of the State of North Dakota.(59)
After taking the oath and "having cast lots for length of term of office as prescribed by the Constitution of the State," the first official action of the Court was to appoint R.D. Hoskins as clerk of the Court,(60) as the new Constitution authorized.(61) Their second official action set their first term of court to be held on the second Tuesday of January 1890 at Fargo.(62)
55. See Lounsberry, supra note 1, at 445. Appendix A lists all the Justices and the years they served the North Dakota Supreme Court.
56. W.B. Hennessy, History of North Dakota 93 (1910).
57. Id. at 93-94.
58. They Swear, Bismarck Trib., Nov. 5, 1889, at 3.
59. See Hennessy, supra note 56, at 94.
60. See Minutes of the Supreme Court of North Dakota vol. A (Nov. 4, 1889) (on file with the clerk of the North Dakota Supreme Court) [hereinafter Supreme Court Minutes].
61. See N.D. Const. art. IV, § 93 (repealed 1976) ("There shall be a clerk . . . who shall hold . . . office during the pleasure of said judges, and whose duties and emoluments shall be prescribed by law and by rules of the supreme court not inconsistent with law."). The judicial article, as amended and revised in 1976 (see chapter 599 of 1977 North Dakota Laws), no longer mentions a clerk of the Supreme Court, but the statutes still direct appointment of one and specify the duties of the office. See N.D. Cent. Code § 27-03-01 (1991). The revised judicial article now directs appointment of a court administrator, and says "the powers, duties, qualifications, and terms of office of the court administrator, and other court officials, shall be as provided by rules of court," "[u]nless otherwise provided by law." N.D. Const. art. VI, § 3.
62. See Supreme Court Minutes, supra note 60.