though the principal respondents maintain their offices in the same buildings where this court transacts its business.

The first question which naturally presented itself upon the presentation of the application was that of jurisdiction. I was of the opinion then that the application failed to present a prima facie case for the exercise of original jurisdiction by this court. That opinion has not been weakened, but strengthened, by subsequent consideration.

It has been said by one of the majority members that "the supreme court is supreme. It has jurisdiction over all courts, state banking boards, and all such administrative boards, and it may say to each of them thus far shalt thou go, and no further." This appears to be a very easy and happy disposition of the question of jurisdiction, and is perhaps the best of which the case admits. But the statement is based upon an erroneous premise. The supreme court is supreme only in the sense and to the extent the Constitution has said it shall be supreme, and not otherwise. The court is a creature of the Constitution, and its powers are fixed thereby. The Constitution distributes the powers of government among three separate co-ordinate departments-the legislative, executive, and judicial. The supreme court is invested with judicial power only, and it and the judges thereof are, by express declaration, precluded from performing any duties except as are judicial. Const. § 86. The people by their Constitution sought to insure in this state a tribunal of dignified impartiality to sit as final interpre ter of the laws of the state. To that end they not only precluded the court and the judges thereof from exercising executive and legislative duties, but said that a member of this court should be ineligible to any other than a judicial office "during the term for which he was elected or appointed such judge." Const. § 119.

Nor does the Constitution confer unlimited judicial power upon the supreme court. The power with which it is vested is consonant with the place which the court was intended to occupy in the scheme of our state government. The primary function of the supreme court is that of an appellate court of last resort. It is not invested with original jurisdiction in ordinary causes. Such jurisdiction is vested in the district courts.

The Constitution provides: "The district courts shall have original

46 N. D.-33.

jurisdiction, except as otherwise provided in the Constitution, of all causes both at law and equity." And "they and the judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same." Const. § 103.

The supreme court, except as otherwise provided in this Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law. Const. § 86.

The powers of the supreme court, in addition to those granted by § 86 of the Constitution, are those granted by § 87 thereof, which latter section reads: "It shall have power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, and such other original and remedial writs as may be necessary to the proper exercise of its jurisdiction, and shall have authority to hear and determine the same; provided, however, that no jury trial shall be allowed in said supreme court, but in proper cases questions of fact may be sent by said court to a district court for trial."

It will be observed that these sections vest in this court three independent and distinct grants of jurisdiction: (1) Appellate jurisdiction; (2) general superintending control over inferior courts; and (3) original jurisdiction to issue certain writs, and to hear and determine the proceedings so instituted.

The third grant of jurisdiction, i. e., the original jurisdiction, alone is involved in this proceeding. The extent of such jurisdiction is no longer-if indeed it ever was an open question in this state. It seems clear, however, that the framers of the Constitution had definitely in mind the purpose and limits of the original jurisdiction which they proposed that the people confer upon this court. For a provision substantially the same in the Wisconsin Constitution had been fully explained and elucidated in two masterly opinions prepared by Chief Justice Ryan, of the Wisconsin supreme court, a quarter of a century before the North Dakota Constitution was framed. See Atty. Gen. v. Chicago & N. W. R. Co. 35 Wis. 425; Atty. Gen. v. Eau Claire, 37 Wis. 400.

In those cases the Wisconsin supreme court had announced that the

grant of power to the supreme court to issue certain writs was not intended "in the same sense and with the same measure of jurisdiction" as the power granted in the Constitution to the circuit (in this state district) courts to issue the same writs. The court said: "The writs are given to the circuit courts as an appurtenance to their general jurisdiction; to this court for jurisdiction. Those courts take the writs with unlimited original jurisdiction of them, because they have otherwise general original jurisdiction. Other original jurisdiction is prohibited to this court, and the jurisdiction given by the writs is essentially a limited one. These courts take the prerogative writs as part of their general jurisdiction, with power to put them to all proper uses. This court takes the prerogative writs for prerogative jurisdiction, with pow er to put them only to prerogative uses proper." The original jurisdiction of this court is not only limited to prerogative writs, but it is confined to prerogative causes." That the prerogative jurisdiction of the court was conferred because "contingencies might arise wherein the prerogatives and franchises of the state, in its sovereign character, might require the interposition of the highest judicial tribunal to preserve them." That the court was given original jurisdiction of certain writs, because they are designed for the very purpose of protecting the sovereignty and its ordained offices from invasion or intrusion, and, also, to nerve its arm to protect its citizens in their liberties, and to guard its prerogatives and franchises against usurpation." That "it is not enough to put in motion the original jurisdiction of this court, that the question is publici juris; it should be a question quod ad statim republicae pertinet; one affecting the sovereignty of the state, its franchises, or prerogatives, or the liberties of its people." That "to bring a case within the original jurisdiction of this court, it should involve, in some way, the general interests of the state at large."

It would seem that when this state adopted the provision relating to the original jurisdiction, it also adopted the construction which the Wisconsin supreme court had placed thereon. In any event that construction, in the early history of the state, received the approval of both this court and of the legislature. The question of original jurisdiction first arose in state v. Nelson County (decided April 21, 1890) 1 N. D. 88, 8 L.R.A. 283, 26 Am. St. Rep. 609, 45 N. W. 33. In that case it was sought to enjoin the issuance of seed-grain bonds by the de

fendant county, on the ground that the issuance of such bonds would contravene the Constitution. The court took occasion to point out that the original jurisdicion of the supreme court might be invoked “only in cases publici juris and those affecting the sovereignty of the state, its franchises, and prerogatives, or the liberties of its people." It said: "The case at bar affects only the local concern of the county of Nelson and its taxpayers, and hence does not fall within the limited class of cases indicated above, and in which alone this court will assume original jurisdiction." 1 N. D. 101. Attention was also called to the fact that the provision in our Constitution relating to original jurisdiction is substantially the same as the provision in the Wisconsin Constitution on the same subject, and the two Wisconsin cases heretofore referred to were approved. In 1891 the legislative assembly of this state, by enactment, provided that the supreme court "shall exercise the said original jurisdiction only in habeas corpus cases, and in such cases of strictly public concern as involve questions affecting the sovereign rights of the state or its franchise or privileges." Laws 1891, chap. 118; Comp. Laws 1913, § 7339. This statute has never been repealed or amended. The correctness of the rule announced in the Nelson county case, and in the statute mentioned, has never been questioned, but has repeatedly been reaffirmed. As was said by this court, speaking through Chief Justice Morgan, in State ex rel. Steel v. Fabrick, 17 N. D. 532, 536, 117 N. W. 860: "These sections [Const. $$ 86 and 87] have been under consideration in many cases by this court. From these cases it is established without dissent that the jurisdiction is not to be exercised unless the interests of the state are directly affected. Merely private rights are not enough on which to base an application for the issuance of original writs by this court. The rights of the public must appear to be directly affected. The matters to be litigated must not only be publici juris, but the sovereignty of the state or its franchises or prerogatives or the liberties of its people must be affected. Before the court will, in the exercise of its original jurisdiction, issue prerogative writs, there must be presented matters of such strictly public concern as involve the sovereign rights of the state, or its franchises or privileges. The often quoted statement of the rule as to the original jurisdiction of the supreme court to issue writs of a prerogative character, as given in Atty. Gen. v. Eau Claire, 37 Wis. 400, is well ex

pressed and clear; To warrant the assertion of original jurisdiction here, the interest of the state should be primary and proximate, not indirect or remote; peculiar, perhaps, to some subdivision of the state, but affecting the state at large in some of its prerogatives; raising a contingency requiring the interposition of this court to preserve the prerogatives and franchises of the state in its sovereign character.' This statement of the rule has been approved in many cases in this court."

Is this action one which "affects the sovereignty of the state, its franchises, or privileges, or the liberties of its citizens?" Unless this question can be answered in the affirmative, this court has no jurisdiction, and it is the sworn duty of the members of the court to say so. The court has no discretion. Discretion exists only in cases which fall within the rule stated, but "in cases, not within said rule, no discretion is vested in this court." State ex rel. McDonald v. Holmes, 16 N. D. 457, 114 N. W. 367. The question of jurisdiction is not technical, as has been intimated. It lies at the very foundation of official action. In reality there can be no official or judicial action without it. Where jurisdiction is absent, i. e., where officials exercise powers which have not been conferred upon them, they cease to be agents of the people, and become usurpers. It is at least as much the duty of officials to refrain from exceeding their powers, as to exercise the powers conferred. That is true of all officials. It is peculiarly true of the courts, whose function it is to interpret laws.

The original jurisdiction is a great power. It was vested in this court for use upon prerogative occasions only. It was limited both in scope and purpose,-it was limited to certain writs, "designed for the very purpose of protecting the sovereignty and its ordained offices from invasion or intrusion; to nerve its arm to protect its citizens in their liberties, and to guard its sovereign prerogatives and franchises against usurpation."

The Scandanavian American Bank of Fargo is purely a private business concern. It is owned by its stockholders, and its business affairs conducted by its officers and directors. The profits of its business belong to its stockholders, and its losses must be borne by them. It is not an instrumentality of the state government. It exercises and possesses none of the sovereign power of the state. It performs no govern