14 S.D. 383 | S.D. | 1901
This proceeding in mandamus was commenced by the plaintiff, as state’s attorney of Potter county, in July 1900, to compel the board of county commissioners of said county to recognize him as such state's attorney, and to compel it to draw a county warrant for the quarter’s salary to which he claimed to be entitled. The court below dismissed the action and from this judgment the plaintiff has appealed.
At the general election in 1898, the plaintiff was elected state’s attorney of said Potter county, received his certificate, of election, took the required oath, caused to be recorded and filed his official bond within the time prescribed by law, and entered upon the discharge of the duties of his office, and continued to discharge the same, receiving his salary therefor, until April 7, 1900. His bond was approved by the county auditor, but not by the board of county commissioners. On the last mentioned date the board of county commissioners adopted a preamble and resolutions, the material parts of which are as follows: “Whereas, Samuel M. Howard, at present claiming to be the state’s attorney of Potter county, South Dakota, is not now, and never has been, admitted to practice law in the courts of this state, and it is not now, and never has been, authorized to appear as attorney in any court of record in this state; and, whereas, the law of this state requires that the incumbent of the office of state’s attorney shall be ‘duly admitted’ to practice as an attorney in some court of record in this ‘state’; and, whereas, * * *said Samuel M. Howard, although claiming to have been elected to said
It is too clear for argument that the board of county commissioners had no power or authority to remove the plaintiff or declare the office vacant on the ground that he was ineligible. That is a question that can only be determined in a proceeding in the nature of a quo warranto in a proper court. Can the question of his eligibility be raised in this proceeding? As we have seen, it is contended by the plaintiff that it cannot, and authorities are cited on the part of the plaintiff to support his contention; but, in the view we take of the cause, we do not deem it necessary to discuss that question on this appeal, for, asuming that the question could be
The next question presented is, was the office vacant by reason of the plaintiff’s neglect to have his bond approved by the board of county commissioners within the time prescribed by law? By the Code of 1877 a district attorney was provided for each of the judicial districts, and it was provided that his bond should be approved by the county clerk. By the same act it was provided .that the bonds of all county, township and precinct officers should be approved by the board of county commissioners, and, with the oath of office, should be filed with the county clerk. Section 5, chap. 5, Pol. Code, being section 1373, Comp. Laws 1887. In 1883, by chapter 43 of the Session Laws of that year, the sections providing for a district attorney were repealed, and provision made for the election of county attorneys, in which it was provided that the county attorney should execute a bond to the county, to be approved by the county
The respondents insist that under the provisions of section 427, -Comp. Laws, the appellant, in- order to be eligible to the office, „ras required to be “duly admitted to practice as an attorney in some court of record in this state.” But we are of the opinion that this provision of the law of 1883, carried into the Compiled Laws as section 427, cannot control or affect the constitutional provision, which provides that the qualification of a state’s attorney shall be that he is “learned in the law.” It is not competent for the legislature to add to or take from this qualification made by the constitution. The effect of that provision can only be determined by the courts. While it is true that all statutes in force prior to the adoption of the constitution, not repugnant to or inconsistent with the constitution, remained in force after its adoption, it was such laws only that remained in force; and a statute inconsistent with the constitution
Again, it is insisted on the part of the respondents that, as the plaintiff had a right to appeal from the order of the board refusing to order a warrant drawn for his salary for the quarter ending June 20, 1900, he should have appealed, and cannot invoke mandamus proceedings to compel the board to issue the warrant. It will be observed, however, that one of the objects of this proceeding was to require the board to recognize the plaintiff as state’s attorney. To secure such recognition and to be restored to the office from which he was wrongfully removed by the board, the proceeding by mandamus was the only proper one; and we are of the opinion that for the purpose of compelling the board to issue its warrant this proceeding was the proper one. Under the decision of the late territorial supreme court, in Spencer v. Sully Co., 4 Dak. 474, 33 N. W. 97, it was competent for the appellant to bring an original action in the circuit court to recover the amount due him, or to proceed by mandamus to compel the board to draw its warrant therefor. That court, in the case cited, has shown very conclusively, we think, that a party cannot be concluded by the action of the board of county commissioners in denying his claim, although he fails to appeal from the order in the manner prescribed by the statute; but he may appeal if he chooses to do so. That decision is applicable under our constitution, as it, like the organic act, vests the judicial powers in the supreme court, the circuit courts, the county courts, and justices of the peace, and such other courts as may be created by law for cities and incorporated towns. No judicial power, it will be seen, is vested in boards of county commissioners, nor is the legislature