1 S.D. 292 | S.D. | 1890
On the 11th day of October, 1890, the attorney general of the state presented and filed in this court his own affidavit and that of Bayard E. Beach, stating in substance, that the county of Hughes was an organized county, and the couties of Nowlin and Sterling were unorganized counties of the state; that on the 2d day of September, 1890, the board of county commissioners of said Hughes county assumed to establish election precincts in and for said unorganized counties of Nowlin and Sterling, and to appoint polling places therein, and judges therefor; particularly reciting the proceedings of said board; and further alleging that said proceedings were in violation of law, and in violation of the election laws of the state, and were an unwarranted and illegal assumption of x^ower axid jurisdiction by said boax'd of county commissioners, and an unlawful and unauthorized interference with the elective franchise in the state, and an injux-y to the rights and elective franchise of all of the citizens of the state; and further alleging that there was no writ of error, ajxpeal, or any other xfiain, sx>eedy and adequate remedy in the px’emises; and, ux>on these
1. That no reason or cause is given in the application why this court should exercise jurisdiction, and why the application was not made to the circuit court. Sections 2 and 3, of Art. 5, of the constitution of the state, read as follows: “Sec 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general superintending control over all inferior courts, under such regulations and limitations as may be prescribed by law. Sec. 3. The supreme court, and the judges thereof, shall have power to issue -writs of habeas corpus. The supreme court shall also have power to issue writs of mandamus, quo -warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same in such cases and under such regulations as may be prescribed by law; provided, however, that no jury trials shall be allowed in said supreme court, but, in proper cases, questions of fact may be sent by said court to a circuit
2. The application does not show that the relator is a party beneficially interested, or that the acts complained of are of general interest to the public of this state, or that the acts complained of tend in any manner to prejudice rights of all or any of the citizens of the state, or to interfere with, abridge, alter, or take away any privilege or franchise whatever. The action is brought by the attorney general of the state. If the matters charged in his relation are true, then it is not only competent and proper for that officer to bring such facts to the attention of a proper court for correction, but it is his duty so to do. It is not clear how any private individual could maintain an action for such relief. Welch v. Board, 23 Iowa, 199. He is the attorney selected and retained by all the people, in their
3. That the acts complained of are ministerial in character, and are not such as will admit of review finder a writ of certiorari. Section 5507, Comp. Laws, is as follows: “A writ of certiorari may be granted by the supreme and district courts when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and their is no writ of error or appeal, nor, in the judgment of the court, any other plain, speedy, and adequate remedy.” There is little room for doubt or discussion as to the office of a writ of ee/rtiorari at common law, and in many of the states the writ is left as at common law unaffeetd by statutory regulations. In other states, the legislature has adopted rules of practice for its issuance and hearing, without materially affecting the reach or scope of the writ, but our statute, inherited from the territory of Dakota, is sui generis. It is not only unlike the common law, but equally unlike the law of
4. That the plaintiff has other plain, speedy, and adequate remedy. Upon the argument it was insisted by defendants that the state might appeal. Under Section 610, Comp. Laws, appeals may be taken from decisions of the board of county commissioners “upon matters properly before them,” and then only, as aopears by the opinion of the supreme court in Water-Works Co. v. Hughes Co. 5 Dak. 145, 37 N. W. Rep. 733, when such decision is quasi judicial. Such being the necessary condition and quality of the act and decision of the board, to render it appealable, we should be unwilling to hold, even if there were no other obstacles in the way of an appeal by the state in this case, that such was a plain, speedy, and adequate remedy. In our judgment, it would very greatly lack the element of plainness. They also suggest a writ of prohibition — the statutory contest — and quo warranto, as available and adequate remedies. These remedies might, and undoubtedly would, be serviceable in reaching some of the results that might follow the acts complained of, but it is not perceived how any or all of them could be made available to accomplish the relief to wards which this writ is directed.
6. That the acts complained of were and are legal and valid and within the jurisdiction of the defendants. This goes to and covers .the merits of the controversy, and brings us directly to the inquiry, had the board of county commissioners of Hughes connty, on the 2d day of September, 1890, authority to establish election precincts, appoint judges of election, and the places for holding such election in the unorganized counties of Nowlin and Sterling? The territorial legislature, by Section 1, c. 175, Laws 1887. enacted as follows: “That the counties of * * * Sterling and Nowlin, in the Territory of Dakota be and the same are hereby attached' to the
We have thus endeavored to cover and express an opinion upon every question presented in the argument. It is a matter of regret to the court, and particularly to the writer, to whom was assigned the duty of preparing this opinion, that the obvious importance of an immediate decision and opinion has precluded a more elaborate treatment of the many questions involved, and such a discussion of them in this opinion as the marked ability and earnestness with which the case was presented on both sides, would seem to demand. Having but the few hours which we might fairly take from the constant demands of the business of the court during term, we have been unable to make as liberal use of authorities as might be expected in an opinion upon the questions discussed. Following the intimations already expressed, it is the opinion of this court, and it is found and adjudged, that the specific acts complained of in the relation of the attorney general, to-wit, the acts and proceedings of the board of county commissioners of Hughes county in establishing election precincts, appointing places for holding the election, and judges of election, within and for the unorganized counties of Nowlin and Sterling, as the same appear by the return of said board, were and are irregular, erroneous, void, and of no effect, for the reason that said board of county commissioners of Hughes county were without jurisdiction to do and perform said acts within and for said unorganized counties of Nowlin and Sterling. Let formal judgment be entered accordingly.