9 S.D. 413 | S.D. | 1896
Defendant demurs to the complaint, on the grounds that plaintiff has not legal capacity to sue, and that the complaint does not state facts sufficient to constitute a cause of action. Such facts are substantially as follows. May 20, 1893, one Mot Matson was murdered in Lyman county, then unorganized, and attached to Brule for judicial purposes. Henry Schroeder and Frank B. Phelps were accused of the crime, arrested by officers of Brule county, and an inquest was held prior to May 27th, when plaintiff became one of the duly organized counties of this state. Thereupon the accused were surrendered to the officers of the newly-organized county, who continued the prosecution. Having been indicted, Schroeder entered a plea of guilty, and was sentenced to imprisonment for life. Phelps entered a plea of not guilty, was granted a change of place of trial to Hanson county, where he was convicted, and sentenced to imprisonment for life, The judgment
The first ground of demurrer is untenable. Each organized county .is a body corporate for civil and political purposes only, and, as such, may sue and be sued, plead and be impleaded, in any court in this state. Comp. Laws, § 572. The legislature shall direct by law in what manner and in what courts suits may be brought against the state. St. Const. Art. 3, § 27. It is competent for “any person,” deeming himself aggrieved by the refusal of the state auditor to allow any just claim against the state, to commence an action in this court. Laws 1890, Chap. 1. The word “person,” as here used, includes not only human beings, but bodies politic and corporate. Comp. Laws, £ 4746. The right of any organized county to institute an action against the state has been expressly conferred by the legislature, agreeably to the provisions of the constitution. “The civil and criminal jurisdiction of justices of the peace in organized counties in any judicial subdivision containing one or more unorganized counties, shall extend over all such unorganized county or counties in such subdivision; and all summons, warrants, orders or process issued by such justice of organized counties, shall be served or executed by the sheriff or any constable of the same county, and the costs in all criminal prosecutions in the circuit and justice courts for offenses heretofore or hereafter charged to have been committed when the same is not collected from the defendant, shall be audited and
The state is certainly liable for the expenses incurred prior to the time of organization. Whether it should pay expenses incurred after that time presents a difficult question. The pertinent portion of the statute is this: “And the expenses of all criminal prosecutions arising or having arisen in such unorganized counties, including the lawful costs of keeping the prisoners, shall be audited and paid out of the state treasury.” Whatever may be the strict grammatical construction of this language, the legislative intent is evident. It does not mean that the expenses to be paid by the state shall arise in hnor ganized counties. It is the criminal prosecutions which must
The learned attorney general contends that it does not appear upon the face of the complaint ’that the account has been certified as correct by the state’s attorney, and allowed by the circuit court, and that such acts are conditions precedent to the bringing of an action thereon. It may be doubtful if these facts are properly pleaded, but their omission does not render the complaint demurrable. The statute controls the action of the auditor, but does not restrict plaintiff’s right of action. Short v. White Lake Tp. (S. D.) 65 N. W. 432. If aggrieved by the refusal of the auditor to allow his claim, the claimant may commence an action. Sec. 1. Chap. 1, Laws 1890. Such refusal is the only condition precedent. The complaint is certainly sufficient in this respect.
Finally, it is suggested that the plaintiff cannot recover because it paid the claims, without taking assignments of each,