19 S.D. 555 | S.D. | 1905
This action was instituted to remove the defendant from the office of superintendent of schools. At the trial the defendent objected to the introduction of any evidence on the grounds (1) that it appeared upon the face of the complaint that the court was without jurisdiction; and (2) that the complaint did not state facts sufficient to constitute a cause of action. The objection was sustained, and, plaintiff having elected to stand on its complaint, a verdict was directed in favor of the defendent, and judgment entered thereon, from which this appeal was taken.
Omitting title, prayer and verification, the complaint is as follows: “The plaintiff above named, by its board of county commissioners, complains of the defendent and alleges: (1) That it is a duly and legally organized county within the state of South Dakota, and has been such organized county for more than ten years last past, and, as such organized county in this state, is authorized to elect county officers, and to institute actions for their removal for cause, to sue and be sued. (2) That said defendent was in the fall of 1900 duly elected to the office of superintendent of schools of plaintiff county for
It is evident that the only cause of removal intended to be alleged is “willful neglect of duty.” Rev. Pol. Code, § 1806. The charge is a serious one. Removal from -an elective, constitutional office involves substantial consequences. The accusation in such a case should be sufficiently definite and certain to enable the accused properly to prepare his defense. As we view the complaint, the only facts alleged are (1) that the plaintiff was an organized county; (2) that defendent was the elected and qualified superintendent of schools; and (3) that he was voluntarily absent from the state for one month, during which time he performed no official duties, and no one was
For the reasons heretofore stated, without considering other alleged defects in the compiaint, or what, if any effect should be given the sections of the statute (Rev. Pol. Code, §§ 1806, 1807) under which it was intended to be drawn, we think the learned circuit .court did not err in sustaining defendent’s objection, and that its judgment should be affirmed.