138 N.W. 300 | S.D. | 1912
Order to show cause why a writ of prohibition should not issue restraining defendant as Secretary of State from certifying to the county auditors of the -several counties in the state, the nomination of candidates for the office of supreme judge to be voted for at the general election to be held in November, 1912. The Attorney General, Royal C. Johnson, consents to, and in effect joints in, the application for the writ in behalf of the state of South Dakota, on the ground that the questions involved are of great public interest and importance. The writ was. returnable on the 16th day of September, 1912, at which time-defendant Polley,-as Secretary of State, appeared by the Attorney General and Perry E. Loucks, his counsel, and filed objections to further proceedings herein, and a motion to dismiss the same, and
It was suggested in argument by defendant’s counsel that the rule as stated in 23 Cyc. supra, is not sustained by the authorities there cited. In this contention defendant’s counsel are in error. In the recent case of Galey v. Board of Commissioners, 174 Ind. 181, 91 N. E. 593, Ann. Cas. 1912C, 1099, the Supreme Court of Indiana adopted and laid down the rule as stated in Philadelphia v. Fox, 64 Pa. 170, where the court, speaking by Mr. Justice Sharswood, says: “The true rule undoubtedly is that whenever it becomes necessary for a judge to sit, even where he has an interest, where no provision is made for calling another in, and where no one else can take his place, it is his duty to hear and decide, however disagreeable it may be. Matter of Ryers, 72 N. Y. 1, 28 Am. Rep. 88.” In State ex rel. Cook et al. v. Houser, Secretary of State, 122 Wis. 534, 100 N. W. 964, the court held as stated in the syllabus: “All common-law rules as to the disqualification of judges give way to the .stern rule of necessity, permitting, one to act judicially, though he would be disqualified otherwise, if, were he not to act, there would be no
The particular thing the Legislature could not have done without this authority was to extend or abridge the constitutional term of judicial office, and it is clear to our minds that the purpose of the latter clause of section 26, art. 5, was not to authorize the fixing of the date of judicial elections, but to authorize the Legislature to lengthen or shorten a judicial term, should they deem it expedient so to do, to accomplish the purpose of fixing a date for judicial elections different from that on which an election is held for any other ¡purpose. The preceding portion of section 26, art. 5, prescribes the time of judicial election as '“the first election held under the provisions of this Constitution,” and thereafter, “as provided by law * * *” as provided in the following clauses of this section. The power to “provide by law,” and to determine when judicial elections shall be held, is thus vested in the Legislature with no limitations except such as may be found in the Constitution itself, and we find none. It follows that the power to fix the time of judicial elections is a continuing one, and may be exercised as in the wisdom of the Legislature may seem best for the public good.
For the reasons stated, the demurrer to’ the petition is sustained, and the motion to quash the proceeding- is granted.