Page:North Dakota Reports (vol. 48).pdf/132

 THE STATE OF NORTH DAKOTA, Respondent, v. FRANK KOONCE, Appellant.

Constitutional law—constitutionality of Redistricting Act cannot be raised in prosecution for unlawful sale.

1. In a criminal prosecution for the sale of intoxicating liquors, the defendant may not raise the question of the constitutionality of the Judicial Redistricting Act (chap. 16, Laws of Regular Session, 1919), in which the county is made a part of a larger district than formerly obtained and in which provision is made for additional judges.

Constitutional law—objection to constitution of court under Redistricting Act held not well founded.

2. There is no merit in a constitutional objection to the manner in which the court is constituted, where it appears that the court is presided over by the same judge who would be the district judge de jure if the constitutional objections were valid.

Criminal law—new trial for newly discovered evidence held properly denied for want of diligence.

3. For reasons stated in the opinion, it is held, that the court did not err in denying the defendant’s motion for a new trial on the ground of newly discovered evidence.

Appeal from the District Court of Ramsey County, Buttz, J.

Affirmed.

W. M. Anderson, for appellant.

The legislature, acting solely by itself, cannot change the fundamental law. Changes in our constitution must have the approval of the electors. State. v. Dahl, N. D. 6, 82.

This appeal presents squarely a constitutional question, and it is the right and duty of the judiciary to decide it. 8 Cyc. p. 728b and cases