and determine a writ of certiorari under such regulations as may be prescribed by law; where judicial questions are involved affecting the sovereignty of the state, its franchise or prerogatives, or the liberties of its people.

2. An affidavit of the attorney general of the state, alleging that the board of county commissioners of an organized county has unlawfully established voting precincts and appointed judges of election and places for holding elections in territory outside of and beyond the limits of its county, to-wit in unorganized counties attached to such organized county "for judicial purposes," and that such acts are in violation of the election laws of the state, and an unlawful interference with the elective franchise of the state, and an injury to the rights and elective franchise of all the citizens of the state, presents a case for the exercise of such original jurisdiction by this court, where there is no writ of error, appeal, or other plain, speedy, and adequate remedy.

3. In such case, the affidavit being made by the attorney general in behalf of the state, it is made by a party "beneficially interested."

4. The power and authority to make such affidavit, and to apply for and prosecute such writ for the review of such proceedings, are inherent in the office of the attorney general upon principles of general law, and do not depend upon any express statute.

5. A writ of certiorari issued under Section 5507, Comp. Laws, authorizing such writ, "when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction," will reach, or bring before the court for review, the proceedings of such board of county commissioners, in respect to the acts so complained of, as in excess of the jurisdiction of said board, where there is no writ of error, appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy.

6. Held, there is no writ of error, appeal, nor other plain, speedy, and adequate remedy, and that a writ of certiorari properly issued.

7. Chapter 175, Laws 1887, attaching the unorganized counties of Nowlin and Sterling to Hughes county "for judicial purposes," did not have the effect of so attaching them for election purposes, such act being at once a grant and a limit of jurisdiction.

8. To be attached "for judicial purposes," as in said Chapter 175, is not to be "annexed" within the meaning of Section 535, Comp. Laws.

State ex rel. Dollard, Attorney General, v. Board County Commissioners, Hughes County et al., 1, S. D., 292. 46, N. W., 1127.

§ 3. The supreme court and the judges thereof shall have power to issue writs of habeas corpus. The supreme court shall also have power to issue writs of mandamus, quo warranto, certiorari, injunction and other original and remedial writs, with authority to hear and determine the same in such cases and under such regulations as may be prescribed by law; Provided, however, that no jury trials shall be allowed in said supreme court, but in proper cases, questions of fact may be sent by said court to a circuit court for trial before a jury. WARRANTO-ELECTIONS-VACANCIES TERMS DEFINED-AP

QUO

POINTMENT-JUDICIARY.

1. Section 3, Art. 5, must be understood as intended to give the court jurisdiction of cases in which the information in the nature of quo warranto has become a substitute for the ancient writ.

2. In case of doubt between different constructions claimed for a constitutional or statutory provision or the meaning of a term, it is always allowable to inquire what results would legitimately follow either, with a view of ascertaining, if possible, whether such consequences were contemplated or intended.

3. There is no inherent reserved power in the people to hold an election to fill a vacancy in an elective office.

4.

Such election can only be held when, and as authorized by law.

5. In Section 37, Art. 5, the expression "next general election" means the next election at which it is provided by law that the officer may be elected whose office has become vacant.

6. In November, 1892, when the general election was held, there was no law, constitutional or statutory, authorizing the election of a circuit judge, either for a full term or for a fractional term.

7. Until such a law is passed there can be no election of supreme or circuit judges under Section 26, Art. 5.

8. The governor having appointed respondent to the office of circuit judge of the Seventh Judicial circuit to fill a vacancy in said office, such appointment constitutes a good title to such office until the legislature provides by law for the election of his successor.

State ex rel. McGee v. Gardner, 3 S. D., 553, 54 N. W., 606.

INJUNCTION—JURISDICTION OF COURT-INTERPRETS WHAT.

1. Because this court has power to issue writs of mandamus, quo warranto, certiorari, injunction and other original and remedial writs, with authority to hear and determine the same, in such cases and under such regulations as may be provided by law, it does not follow that it has jurisdiction to issue an injunction upon any and all occasions. It is clothed with all the powers of a court of equity as understood and defined when the constitution was adopted, but its jurisdiction is limited to such matters as were then of recognized equitable cognizance.

2.

Power to amend the Constitution belongs exclusively to the legislature and electors. It is legislation of the most important character. This court has power to determine what such legislation is, what the constitution contains, but not what it should contain. It has power to determine what statutory laws exist, and whether or not they conflict with the Constitution; but it cannot say what laws shall or shall not be enacted. It has the power, and it is its duty, whenever the question arises in the usual course of litigation, wherein the substantial rights of any actual litigant are involved, to decide whether any statute has been legally enacted, or whether any change in the Constitution has been legally effected, but it will hardly be content that it can interpose in any case to restrain the enactment of an unconstitutional law.

State ex rel. Cranmer v. Thorson, 9 S. D., 152-154, 68 N. W., 202.

§ 4. At least two terms of the supreme court shall be held each year at the seat of government.

§ 5. The supreme court shall consist of three judges, to be chosen from districts by qualified electors of the state at large, as hereinafter provided.

§ 6. The number of said judges and districts may after five years from the admission of this state under this constitution, be increased by law to not exceeding five.

§ 7. A majority of the judges of the supreme court shall be necessary to form a quorum or to pronounce a decision, but one or more of said judges may adjourn the court from day to day, or to a day certain.

§ 8. The term of the judges of the supreme court, who shall be elected at the first election under this constitution, shall be four years. At all subsequent elections the term of said judges shall be six years.

§ 9. The judges of the supreme court shall by rule select from their number a presiding judge, who shall act as such for the term prescribed by such rule. § 10. No person shall be eligible to the office of judge of the supreme court unless he be learned in the law, be at least thirty years of age, a citizen of the United States, nor unless he shall have resided in this state or territory at least two years next preceding his election and at the time of his election be a resident of the district from which he is elected; but for the purpose of re-election, no such judge shall be deemed to have lost his residence in the district by reason of his removal to the seat of government in the discharge of his official duties.

One elected to the office of county judge, must be either admitted, or entitled to be admitted, without examination, to practice as an attorney at law in the state.

Jamieson v. Wiggin, 12 S. D., 16, 80 N. W., 137.

§ 11. Until otherwise provided by law, the districts from which the said judges of the supreme court shall be elected shall be consituted as follows. First District-All that portion of the state lying west of the Missouri river. Second District-All that portion of the state lying east of the Missouri river and south of the Second standard parallel.

Third District-All that portion of the state lying east of the Missouri river and north of the Second standard parallel.

§ 12. There shall be a clerk and also a reporter of the supreme court, who shall be appointed by the judges thereof and who shall hold office during the pleasure of said judges, and whose duties and emoluments shall be prescribed by law, and by the rules of the supreme court not inconsistent with law. The legislature shall make provisions for the publication and distribution of the decisions of the supreme court, and for the sale of the published volumes thereof. No private person or corporation shall be allowed to secure any copyrights to such decisions, but if any copyrights are secured they shall inure wholly to the benefit of the state.

§ 13. The governor shall have authority to require the opinions of the judges of the supreme court upon important questions of law involved in the exercise of his executive powers and upon solemn occasions.

SUPREME COURT-OPINION AT REQUEST OF GOVERNOR.

Const. Art. 5. § 13, is confined exclusively to such questions as may raise a doubt in the executive department-never in the legislative and therefore the court will not, on application by the governor, made at the request of both houses of the legislature, construe a section of the Constitution which declares the number of votes that shall be necessary for the passage of a law, in anticipation of certain rulings under such section by the presiding officers of the legislature; the question involved being one of purely parliamentary procedure.

In re Construction of Constitution, 3 S. D., 548, 54 N. W., 650; See also In re Supreme Court Vacancy, 4 S. D., 532, N. W. 495.

SAME.

Const. Art. 5, § 13, upon request of the governor for an opinion upon the construction of Session Laws 1890, Chap. 6, with reference to the appointment of regents of education, involving the duration of the terms of office of certain regents, an opinion thereon should not be given, as involving rights of persons not given an opportunity to be heard.

In re Chapter 6, Session Laws of 1890, 8 S. D., 274, 66 N. W., 310.

SAME.

An opinion as to the constitutionality of House Joint Resolution, Laws 1897, Chap. 83, cannot be given under Const. Art. 5, § 13, since said resolution involves the personal right of certain parties to hold commissioned offices and to be paid for services already rendered.

In re House Resolution No. 30, 10 S. D., 249, 72 N. W.. 892.

§ 14. The circuit court shall have original jurisdiction of all actions and causes, both at law and in equity, and such appelate jurisdiction as may be conferred by law and consistent with this constitution; such jurisdiction as to value and amount and grade of offense may be limited by law. They and the Judges thereof shall also have jurisdiction and power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, injunction and other original and remedial writs, with authority to hear and determine the same. CIRCUIT COURT-WRITS-ORDERS-CHAMBER COURT.

The latter clause of Section 14, Art. 5, provides that "they (circuit courts) and the judges thereof shall also have jurisdiction and power to issue writs of

habeas corpus, mandamus, quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same;" and Section 18 of the same article provides that "writs of error and appeals may be allowed from the decision of the circuit courts to the supreme court under such regulations as may be prescribed by law." It will thus be seen that the legislature could not take from the circuit judges the power to issue injunctions as judges, had it attempted to do so. That power, being conferred upon them by the constitution, cannot be taken away by any legislative action; and, as Section 18 provides only for appeals from decisions of the circuit court, it may be a question whether it is competent for the legislature to provide for appeals from the order of a judge, if it desire to do so. When, then, the state Constitution and the statute have specifically conferred upon the court or judge the power to make an order, and the judge deems it proper to exercise the power vested in him by making the order a chambers order, and not a court order, such an exercise of his discretion cannot be controlled by this court.

B. H. F. & M. Co. v. G. I. & W. C. R. Co., 2 S. D., 546, 51 N. W., 340. JURISDICTION—MISDEMEANOR-CIRCUIT COURT-ASSAULT.

1. A defendant indicted for an assault with a dangerous weapon with intent to do bodily harm may be found guilty of simple assault, in view of Comp. Laws, § 7429, providing that "the jury may find the defendant guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment."

2. In view of Const. Art. 5, § 14, a circuit court has jurisdiction to try a misdemeanor, which by Comp. Laws, §§ 6509, 7043, may be tried in justices' courts.

State v. Finder, 10 S. D., 103, 72 N. W., 97.

§ 15. The state shall be divided into judicial circuits, in each of which there shall be elected by the electors thereof one judge of the circuit court therein, whose term of office shall be four years.

§ 16. Until otherwise ordered by law. said circuits shall be eight in numnber and constituted as follows, viz:

COUNTY-UNORGANIZED-ASSESSMENT-ACTION FOR FEES.

By Laws 1893, Chap. 49, Lyman county was attached to Brule county for judicial purposes January 26, 1893. Laws 1891. Chap. 15, as amended by Chap. 16, requires the assessor to assess the property in Lyman county and other unorganized counties for state and judicial purposes, and makes the state liable for the expenses of criminal prosecutions arising in such unorganized counties. Held, in an action against the state for fees earned in criminal cases arising in Lyman county, that the petition must show that the fees were earned after January 26, 1893.

Morgan v. State, 9 S. D., 230, 68 N. W., 538.

CIRCUITS.

NOTE The present status of the several circuits of the state is fixed by Article 5. Chapter 11. Political Code, and Chapter 114 of the Session Laws of 1903: Chapters 78, 79 and 80, Session Laws of 1905, and Chapters 111, 112, 113, 114 and 115, Session Laws of 1907.

§ 17. The legislature may, whenever two-thirds of the members of each house shall concur therein, increase the number of judicial circuits and the judges thereof, and divide the state into judicial circuits accordingly, taking care that they be formed of compact territory and be bounded by county lines but such increase of number or change in the boundaries of districts shall not work the removal of any judge from his office during the term for which he shall have been elected or appointed.

§ 18. Writs of error and appeals may be allowed from the decisions of the circuit courts to the supreme court under such regulations as may be prescribed by law.

APPEALS-LIMITATIONS OF.

Const. Art. 5, § 18, is permissive only, and does not prohibit the legislature from limiting appeals to a defined class of cases.

McClain v. Williams, 10 S. D., 332, 73 N. W., 72.

COUNTY COURTS.

$ 19. There shall be elected in each organized county a county judge who shall be judge of the county court of said county, whose term of office shall be two years until otherwise provided by law.

See Hauser v. Seeley, et al., 18 S. D., 308, 100 N. W., 437.

§ 20. County courts shall be courts of record and shall have original jurisdiction in all matters of probate, guardianship, and settlement of estates of deceased persons, and such other civil and criminal jurisdiction as may be conferred by law; Provided, that such courts shall not have jurisdiction in any case where the debt, damage, claim or value of property involved shall exceed one thousand dollars, except in matters of probate, guardianship and the estates of deceased persons. Writs of error and appeal may be allowed from county to circuit courts, or to the supreme court in such cases and in such manner as may be prescribed by law; Provided, that no appeal or writ of error shall be allowed to the circuit court from any judgment rendered upon an appeal from a justice of the peace or police magistrate for cities or towns.

COUNTY COURTS

JURISDICTION-LIMIT OF-SPECIAL.

In pursuance of the powers conferred by the Constitution, Art. 5, Sec. 20, 34, the legislature of 1890 adopted a law-being Chapter 78 of the Session Laws of that year-fixing the jurisdiction of the county courts as to their "other civil and criminal jurisdiction" not fixed by the Constitution. By Section 6 of the same chapter, it is provided that they (county courts) shall have concurrent jurisdiction with the circuit courts, the amount thereof being limited, according to the population of the counties, as follows: * and in all other counties, when the debt, damage, claim, or value of the property involved shall not exceed five hundred dollars." These courts are therefore courts of limited and special jurisdiction as to "such other civil and criminal jurisdiction as may be conferred by law." The jurisdiction of such courts being limited to a specified sum, it can only exercise jurisdiction for any purpose when the debt, damage, or claim is within the amount specified.

66

*

*

Nelson v. Ladd, 4 S. D., 1, 54 N. W., 809.

COUNTY COURTS

JURISDICTION—SUBJECT

MATTER PARTIES

WAIVER-ACTION TRANSFERRED-MOTION TO DISMISS.

1. By the provisions of Section 6. Chapter 78, Laws 1890, defining the jurisdiction of county courts and limiting the jurisdiction of the same to "all that class of cases wherein justices of the peace now have, or may hereafter have jurisdiction, the amount thereof being limited according to the population of the counties," the jurisdiction of such county courts is not only limited as to the subject matter of the action over which justices of the peace have jurisdiction, but to the jurisdiction of justices' courts over the parties to the action.

*

2. Section 6044, Comp. Laws, providing that "actions in justices' courts must be commenced and must be tried in the county where the defendant resides or in which he may be summoned," and Section 6055 providing, "that the summons cannot be served out of the county of the justice before whom the action is brought, except, when the action is brought on a joint contract or obligation of two or more parties," control and limit the jurisdiction of county courts over the parties to the action.

3. A general appearance by the defendant in an action, after a special appearance for the purpose, and motion made to dismiss the same on the ground that the court has no jurisdiction of the person, and which has been overruled and exception legally preserved, does not constitute a waiver of the objection to the jurisdiction of the court.