Laws Passed at the 1st- Session of the Legislature of the State of South Dakota

4. When an action in which the court has not jurisdiction of the person of the defendant, and in which a motion to dismiss on the ground that the court has not jurisdiction of the person of the defendant has been made and overruled, and exception preserved, is transferred to another county court, the latter court acquires no jurisdiction of the same, and it should, on motion, dismiss the action.

Benedict v. Johnson, 4 S. D., 388, 57 N. W., 66. COUNTY COURTS-POWERS.

In ascertaining the powers of the county court in this state, it will be necessary to consult our own constitution and statutes in the light of recognized principles of law. If power exists to coerce obedience to this order of the county court, it exists by reason of the inherent powers of that court, and not by reason of any express statutory authority. The county court is a court of record created by the constitution. In all probate matters its proceedings are to be construed in the same manner, and with like intendments as the proceedings of courts of general jurisdiction, and to its records, orders, judgments, and decrees must be accorded the same force, effect and legal presumptions that are accorded to the records, orders, judgments, and decrees of circuit courts.

In re Taber, 13 S. D., 67, 82 N. W., 398.

21. The county court shall not have jurisdiction in cases of felony, nor shall criminal cases therein be prosecuted by indictment, but they may have such jurisdiction in criminal matters, not of the grade of felony, as the legislature may prescribe, and the prosecutions therein may be by information or otherwise as the legislature may provide.

COUNTY COURT-JURISDICTION-LIMIT OF BASTARDY.

The provisions of Chapter 24, Laws 1893, conferring jurisdiction in bastardy proceedings upon county courts, are not in conflict with the provisions of section 20, 21, Art. 5.

State v. Scott, 7 S. D., 619, 65 N. W., 31; See also State v. Bunker, 7 S. D., 721, 65 N. W., 33.

JUSTICE OF THE PEACE.

§ 22. Justices of the peace shall have such jurisdiction as may be conferred by law, but they shall not have jurisdiction of any cause wherein the value of the property or the amount in controversy exceeds the sum of one hundred dollars, or where the boundaries or title to real property shall be called in question.

POLICE MAGISTRATE.

The following amendment to Section 23 of Article V was submitted at the general election that was held November 6, 1906, and was adopted by a vote of 29,417 for, and 18,755 against.

$23. The legislature shall have power to provide for creating such police magistrates for cities and towns as may be deemed from time to time necessary, who shall have jurisdiction of all cases arising under the ordinances of such cities and towns respectively and such police magistrates may also be constituted ex-officio justices of the peace for their respective counties. In cities having a population of five thousand or over the legislature may provide, in lieu of police magistrates, for municipal courts the judges whereof shall be chosen in such manner as the legislature shall prescribe, which courts shall have exclusive original jurisdiction of all cases, both civil and criminal, cognizable before a justice of the peace under the laws of the state, and in which process shall be served within the city where such court is established, and shall also have exclusive original jurisdiction of all cases arising under the ordinances of such city. Such court shall also have jurisdiction co-extensive with the county in which such city is situated, in such civil and criminal cases as may be provided by law.

POWERS EMBEZZLEMENT.

Under Comp. laws § 7119, a police justice may act as a committing magistrate on a prosecution for embezzlement.

State v. Wright, 15 S. D., 628, 91 N. W., 311.

STATES ATTORNEY.

§ 24. The legislature shall have power to provide for state's attorneys and to prescribe their duties, and fix their compensation; but no person shall be eligible to the office of attorney general or state's attorney who shall not at the time of his election be at least twenty-five years of age and possess all the other qualifications for judges of circuit courts as prescribed in this article. QUALIFICATIONS-CONTESTED ELECTION-CERTIFICATE OF NOMINATION OMISSION IN-PLEADINGS.

In a contest for the office of state's attorney, under Comp. Laws, §§ 1489, 1891, the omission, in the certificate of nomination, of the words. "learned in the law," required as a qualification for candidates by Const. Art. 5, §§ 24, 25, is obviated by an averment in the answer to the effect that at the time of the election plaintiff was, and still is the legally qualified and acting state's attorney, as every essential fact appearing in the pleadings, in the absence of a demurrer or motion to dismiss, defendant has no cause for complaint.

McMahon v. Polk, 10 S. D., 296, 73 N. W., 77.

SAME.

Under Const. Art. 5, §§ 24, 25, and Comp. Laws 1887, § 427, requiring persons eligible to the office of district attorney to be admitted to practice as an attorney in some court of record in the territory, was without effect since the legislature could not prescribe additional qualifications, or modify those imposed by the Constitution.

Howard v. Burns, et al, 14 S. D., 384, 85 N. W., 920.

MISCELLANEOUS.

§ 25. No person shall be eligible to the office of judge of the circuit or county courts unless he be learned in the law, be at least twenty-five years of age. and a citizen of the United States; nor unless he shall have resided in this state or territory at least one year next preceding his election, and at the time of his election be a resident of the county or circuit, as the case may be, for which he is elected.

QUALIFICATIONS.

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 this state.

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

See dissenting opinion in Church v. Walker, 10 S. D., 96.

§ 26. The judges of the supreme court, circuit courts and county courts shall be chosen at the first election under the provisions of this constitution, and thereafter as provided by law, and the legislature may provide for the election of such officers on a different day from that on which an election is held for any other purpose, and may for the purpose of making such provision. extend or abridge the term of office for any of such judges then holding but not in any case more than six months. The term of office of all judges of circuit courts, elected in the several judicial circuits throughout the state, shall expire on the same day.

§ 27. The time of holding courts within said judicial circuits and counties shall be as provided by law; but at least one term of the circuit court shall be held annually in each organized county, and the legislature shall make provision for attaching unorganized counties or territory to organized counties for judicial purposes.

TERM-SPECIAL-NEWLY ORGANIZED COUNTY.

Under Const. Art. 5, § 27, a circuit judge may call a special term of court in a newly organized county where more than one year will intervene before the time fixed by law for holding the first regular term of court.

In re Nelson, 19 S. D., 215, 102 N. W., 885.

§ 28. Special terms of said courts may be held under such regulations as may be provided by law.

TERMS-SPECIAL.

If subsequent legislation was required to give effect to Const. Art. 5, 28, it became operative by the enactment of laws 1890, p. 254, c. 105, declaring territorial laws not inconsistent with the state Constitution to be in force, which, in effect, re-enacted Comp. Laws 1887, § 426, authorizing circuit judges to appoint and hold special terms of court.

In re Nelson, 19 S. D., 215, 102 N. W., 885.

§ 29. The judges of the circuit courts may hold courts in other circuits than their own, under such regulations as may be prescribed by law.

CIRCUIT

JUDGES-POWERS-MANDAMUS-APPEAL.

1. Section 29, Art. 5, does not touch the exercise of any power of a circuit judge other than that of "holding court." It neither enlarges nor abridges any other power of the judge, nor authorizes nor forbids the legislature to do so. It is simply silent as to every other power.

2. There is nothing in the Constitution forbidding the legislature to authorize a circuit judge to make an order in his own circuit in a matter pending in another circuit, whose judge is absent; and chapter 79, Laws 1890, so providing, is not invalid on that account.

3. Within the meaning of said chapter, a petition or motion may properly be considered as pending from the time of its filing in the office of the clerk of the court of the proper jurisdiction, as a foundation for other proceedings immediately to follow.

4. An order of a judge in his own circuit, granting a premptory mandamus in another circuit, is not a decision which may be brought directly to this court for review, because-

5. Both the Constitution and the statutes limit the appellate jurisdiction of this court to a review of the decisions of courts.

Holden v. Haserodt, et al., 3 S. D., 4, 51 N. W., 340.

§ 30. The judges of the supreme court, circuit courts and county courts shall each receive such salary as may be provided by law, consistent with this constitution, and no such judge shall receive any compensation, perquisite or emoluments for or on account of his office in any form whatever, except such salary; Provided, that county judges may accept and receive such fees as may be allowed under the land laws of the United States.

31. No judge of the supreme court or circuit court shall act as attorney or counselor at law, nor shall any county judge act as an attorney or counselor at law in any case which is or may be brought into his court or which may be appealed therefrom.

§ 32. There shall be a clerk of the circuit court in each organized county, who shall also be clerk of the county court, and who shall be elected by the qualified electors of such county. The duties and compensation of said clerk shall be as provided by law and regulated by the rules of the court consistent with the provisions of law.

Section 32, Art. 5, of the Constitution, having created the office of clerk of the circuit court, and having provided generally for the election of such officer, with other county officers, at the general election in November, 1890, and the state having been admitted on the 2nd day of November, 1889, there was a vacancy in such office from the time of the admission of the state.

Driscoll v. Jones, 1 S. D., 8, 44 N. W., 726.

§ 33. Until the legislature shall provide by law for fixing the terms of courts, the judges of the supreme, circuit and county courts respectively shall fix the terms thereof.

§ 34. All laws relating to courts shall be general and of uniform operation throughout the state, and the organization, jurisdiction, power, proceedings and practice of all the courts of the same class or grade, so far as regulated by law, and the force and effect of the proceedings, judgments and decrees of such courts severally shall be uniform; Provided, however, that the legislature may

classify the county courts according to the population of the respective counties and fix the jurisdiction and salary of the judges thereof accordingly. LAWS-UNIFORMITY-APPEALS

CIRCUIT-COURT.

Laws 1897, Chap. 55, amending Comp. Laws, Sec. 5213, so as to prohibit appeals from circuit to supreme court in actions for the recovery of money where the amount recovered is $75 or less, or for the recovery of personal property of that value or less, and not including in its provisions certain county courts having concurrent jurisdiction with the circuit courts, violates Const. Art. 5, Sec. 34.

McClain v. Williams, 11 S. D., 60, 75 N. W., 391.

MUNICIPAL LEGISLATION-CITY CHARTER-SPECIAL ACTS-APPEALS LIMITED.

The provision of a city charter authorizing an appeal only in cases under the city ordinances tried without a jury is, where the ordinance punishes an act made criminal by state law, in conflict with the Constitution, with Rev. Pol. Code, sec. 1275, and with Rev. Justices' Code, sec. 148.

Under Comp. Laws 1882, sec. 6571, one convicted by a jury of violat ing an ordinance of the city prohibiting the keeping of a house of ill-fame, may appeal.

Mannie et al. v. Hatfield, Police Magistrate, 22 S. D. 118 N. W. 817.

§ 35. No judge of the supreme or circuit courts shall be elected to any other than a judicial office, or be eligible thereto, during the term for which he was elected such judge. All votes for either of them during such term for any elective office, except that of judge of the supreme court, circuit court or county court, given by the legislature or the people, shall be void.

§ 36. All judges or other officers of the supreme, circuit or county courts provided for in this article shall hold their offices until their successors respectively are elected or appointed and qualified.

OFFICE-TENURE OF INELIGIBILITY.

The facts stated in the amended notice, however, would entitle the plaintiff, if established to the office, as an incumbent of an office holds over in case the candidate receiving the highest number of votes is ineligible.

Batterton v. Fuller, 6 S. D., 268, 60 N. W., 1071.

§ 37. All officers provided for in this article shall respectively reside in the district, county, precinct, city or town for which they may be elected or appointed. Vacancies in the elective offices provided for in this article shall be filled by appointment until the next general election as follows: All judges of the supreme, circuit and county courts by the governor. All other judicial and other offices by the county board of the counties where the vacancy occurs; in cases of police magistrates, by the municipality. VACANCY-MANDAMUS.

1. The state being admitted in 1889, an election was not held until 1890 and there was a vacancy, and under section 37, Art. 5, of the Constitution, the board of county commissioners could legally fill such vacancy in their county by appointment.

2. Mandamus is the proper remedy to compel the delivery of the seal, records, and other property of an office to a person showing himself prima facie entitled to them.

Driscoll v. Jones, 4 S. D., 532, 44 N. W., 726; See also In re Supreme Court Vacancy.

"ELECTION, NEXT GENERAL" DEFINED.

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.

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

§ 38. All process shall run in the name of the "State of South Dakota." All prosecutions shall be carried on in the name of and by authority of the "State of South Dakota."

Books

Laws Passed at the 1st- Session of the Legislature of the State of South ...