| S.D. | Oct 10, 1896
This is an original action, commenced in this court under the provision of Chap. 1, Laws 1890, and now comes before this court on demurrer to the complaint. The grounds of the demurrer are that the complaint does not state facts sufficient to constitute a cause of action; that several causes of action are improperly united; and that the court has not jurisdiction of the case. The complaint alleges, in substance, that Lyman and Presho counties were, between December 1, 1892, and April 25, 1893, unorganized, and were attached to Brule county for judicial purposes; that between said dates there were several criminal cases that arose in those unorganized counties, tried before justices of the peace in Brule county and that the justices’, sheriffs’, clerks’ and witnesses’ fees in said cases, which could not be collected from the defendants therein, amounted to the sum of $239.35; that these fees were duly certified to and adjusted and allowed by the judge of the circuit court in and for Brule county; and that the same were duly presented to the state auditor, and that he refused to audit and allow the same. It is further alleged that the said justices’, clerks of the courts’, and witnesses’ fees in said cases were duly assigned to the plaintiff, who was the sheriff of said Brule county, and who served the warrants and subpoenas in said actions. No itemized account is given further than the gross fees of the various officers and witnesses in each case. Sec. 425, Comp. Laws, provides that civil and criminal jurisdiction of justices of the peace in any judicial subdivision containing
The attorney general, in support of his demurrer, contends that Section 425 does not apply to those two counties, for the reason that those counties, when the law was enacted, were a part of the Great Sioux Indian reservation. This contention is not tenable, as those counties, when they ceased to constitute a part of the reservation, came within the purview of the general laws then in force in the state, and were thereafter governed by the same law as the other unorganized counties of the state. It is further contended by the learned attorney general that by Chap. 15, Laws 1891, the county assessor of Brule county was required to assess the property in these unorganized counties for state and judicial purposes (the word “judicial being inserted by that act), and therefor a fund was provided in that county for the payment of* the judicial expenses incurred in criminal prosecutions arising in those counties. The learned counsel for the plaintiff contends that the fund for state and judicial purposes, so collected, is required tó be paid into the state treasury, and becomes a state fund for the payment of these expenses. Plaintiff’s contention seems to find support in the amendment made by Chap. 16, Laws 1891, which provides that the compensation of the assessor for making the assessment in the unorganized counties ‘ ‘shall be paid by the state treasurer from the taxes collected on such assessment.” This would seem to contemplate that all taxes collected in the unorganized counties should be paid into the state treasury, whether collected for state or judicial purposes, and become trust funds for the payment of the judicial expenses incident to such unorganized counties. Lyman and Presho counties were included as a part of the Fourth judicial circuit
The second ground of demurrer is not well taken. There is no uniting of improper causes of action in the same complaint, but several causes of action are not stated separately, as they should have been. Demurrer, however, does not reach this defect in the complaint. The reasons why this court has not jurisdiction of the subject-matter of the action, which is stated as the third ground of demurrer, is not stated by the learned attorney general. Chapter 1, Laws 1890, seems to confer jurisdiction upon this court over all actions against the state in which the claim of the plaintiff has not been audited and allowed by the state auditor.