State ex rel. Egan v. Norbeck

160 N.W. 524, 38 S.D. 93, 1916 S.D. LEXIS 132

• Court: South Dakota Supreme Court
• Decided: December 20, 1916
• Docket: File No. 3970
• Status: Published

Opinion

GATES', J.

This action was attempted) to be begun as an original action in this count by the service of the summons and complaint on January 22, 1916. Although it purports to be brought by the state upon the relation of George W. Egan, it is a plain action at law. It seeks to recover from the defendant the sum of $8,230.46, with interest from April 7, 1910, that being the alleged amount paid to ¡defendant by tire Capitol ¡Commission for the construction of .am artesian well upon the state house grounds, the alleged ground1 of recovery being that Peter Norbeck, the .president of and) 'a stockholder in the defendant company, was. a •member of the Legislature which .passed the appropriation for such artesian well, the contract, therefore, being ¡alleged to be in violation oif article 3, § 12, of the ¡Constitution. The defendant demurred to the complaint, ¡among -other grounds, for the reason that this court had no jurisdiction, of the subject of the action. Neither party noticed the dfemurrer for hearing, and ¡on November 15, 1916, this ¡court upon its own ¡motion .issued an order to the parties ¡to show cause why the action should' not be dismissed for want of jurisdiction. Service ¡oif die ¡order was made, and on the return ¡day the defendant appeared by its attorneys, the plaintiff not appearing.

The jurisdiction of the Supreme Court is primarily appellate, in the ¡course of which it also- exercises superintending control over die inferior courts. 'Const, art. 5, § 2; Everitt v. Board of Oom’rs, x S. D. 365, 47 N. W. 296. It is exclusively appellate, except as otherwise provided in- the Constitution. The exceptions are found in two sections of the Constitution.

[1] In article 5, § 3, the Supreme Court is given the. power to issue ¡the extraordinary writs of habeas corpus, mandamus, quo warranto, certiorari, injunction, “and other original and remedial writs.” Manifestly an ordinary action at law such as this does not come within.the purview of this section of the Constitution, even though it in form be styled an ex rel. proceeding.

[2] The second exception -to the exclusively appellate jurisdiction of the Supreme Court is found- in; article 3, § 27, viz.:

“The legislature shall direct by law in what manner and in what courts suits may be brought against the state.”

Under that section the Legislature has1 defined in section 25, C. C. P., what actions may be brought in the Supreme Court against the -state. This section of-the Constitution in no manner relates to actions brought by the state, or by individuals on behalf of the state.

In the absence of any further constitutional exception to its exclusively appellate jurisdiction, it is 'clear that this court is without original jurisdiction of the .present cause of action. That being so, the action. will he dismissed at the costs of the .alleged relator.

TOLLEY, P. J., having been a member of the Capitol Commission at the time in question, took no part in this decision.