5 S.D. 515 | S.D. | 1894
This is an original action in this court, under chapter 1, Laws of 1890. The complaint alleges that between the 1st day of December, 1890, and the 16th day of January, 1891, the Sioux Indians, at and about Pine Nidge agency, in the State of South Dakota, were in a state of insurrection and rebellion against the government of the United States and of the State of South Dakota, and, with force and arms, were invading other portions of the state, to-wit, that part thereof known as the “Black Hill Country, ” and were murdering, killing, and plundering the citizens and settlers therein, wherefore it became the duty of the governor of the state to call out the militia and troops of said state to suppress said insurrection and repel said invasion; that, for said purpose, the then governor of the state, as commander in chief of the military forces of the state, did, between the 30th day of November, and the 23rd of December, 1890, cause and direct “to be enlisted, enrolled and mustered into the military service of said state a large number of soldiers, cavalry, rangers, and scouts, and duly appointed, constituted, and commissioned one Merritt EL Day the commanding officer thereof, and ordered and requested said Merritt H. Day, at the cost and expense of said state, to obtain and cause to be furnished to said soldiers, cavalry, rangers, and scouts, proper and sufficient board, food, and lodging, and proper and sufficient hay, oats, corn, and provender, stabling and corrals
While we should be reluctant to concede all that the attorney general claims, we are of the opinion that the facts stated in the complaint do not, on their face, show a cause of action against the state. The governor of the state is the ex
Again, the constitution places under the governor’s command, and authorizes him to order out, the “military forces” of the state, and defines of what persons such forces shall consist. There is nothing in the complaint to indicate that the soldiers, cavalry, rangers, and scouts which it is alleged he caused to be enrolled, mustered, and called out were such persons as could or did constitute a part of the militia of the state, and for whose subsistence the state could in any event- be- held liable. These defects in the complaint might perhaps be cured by amendments, but there is another view of the question presented by this case, which seems to us more serious.
We think that under these constitutional provisions, and the laws of the state supplemental thereto, providing for the subsistence of the military forces of the state, the governor
For the reason stated, we are of the opinion that the complaint does not show a cause of action against the state. Whether the claim is based upon an attempted express contract of Day, for the state, to pay an agreed price for the subsistence furnished, which, as we have tried to show, he had no authority to make, or upon the theory that such subsistence was furnished upon the coercion and force of a military order, it is a claim adjustable only by the legislature, under the power conferred by said section 3, art. 12. Upon the facts disclosed, we are of the opinion that the claim is not one enforceable in the courts, and the demurrer to the complaint is sustained. To save any possible rights of the plaintiff, however, and to af