Volume 44 — South Dakota Reports

Hon. Wiuriam N. Skinner, Judge. Afction b-y Sarah E. Youngberg, against Oscar A. Young-berg, for a divorce. Erom a judgment for plaintiff who was dissatisfied with the decree in disposing of defendant’s property, she appeals. Pending the appeal Messrs. Sherwood & -Sherwood, attorneys for judgment creditors of defendant, applied for leave to intervene, and also to appear as amici curiae.

Hon. Jameís McNunny. Judge. Proceeding >by the 'State of South Dakota, on the relation of C. M. Damon, against O. O. Stokes and others, as members of the Board of County Commissioners of Butte County, S. D., to review on certiorari the action of county commissioners in submitting to a vote of the people two certain petitions for a division of Butte County.

<p>Appeal from Circuit Court, Brown County. Hon. .Frank Anhgrson, Judge.</p> <p>Application by Vincent C. Lewis, against the Board of County 'Commissioners of Brown County, South Dakota, for a writ of certiorari, to review the action of said Board in rescinding and cancelling the designation by it of relator’s newspaper as an official County newspaper and appointing in lieu thereof another official newspaper. From such rescinding order, relator appealed to the circuit court; andi from the judgment of said court refusing to set aside the rescinding order, relator appeals.</p> <p>(r) To point one of the opinion, Appellant cited, re finality of original designation of newspaper: Buffalo v. Mackay 15 Hun (.N. Y.) 204; Hunter v. Berkley Springs, 47 W. Va. 345.</p>

Hon. Frank Andkrson, Judge. Action by E. A. Mitchell, against J. P. Morgan and others, for specific performance of a contract of sale of realty. From a judgment for plaintiffs, and from an order denying a new trial, defendant J. P. Morgan appeals. (1) To point one of the opinion, Appellant cited: Sec. 824, ■Code 1919: Pomeroy on Spec. Perf. Secs. 145-7. Respondent cited: Drummond v. Crane (Mass.) 23 E. R. A. 707, 714; 13 Cor. Jur. 299, and cases cited in note 96.

'Appeal from Circuit Court, Tripp -Count)’. Hon. Wxluiam Wtuuiamso.n, Judge. Action by Josephine Du-Bray Wihitford, and 'Charles Whit-ford, against G. A. Dodson and T. F. Stevens, to cancel a deed to realty. From' a judgment for plaintiffs, and from an order denying a new trial, defendant Stevens appeals. (2) To point -two, Appellants cited Pomeroy’s Eq. Jur. Secs. 614-1'5, and cases cited; Betts v. Letcher, 1 S. D. 182.

Hon. Robert B. Tripp, Judge. Action by John Kelley, as Administrator of the Estate of Florence Kelley, 'D'eceased, against J. E. Hollingworth, to recover damages for alleged professional malpractice resulting in death of plaintiff’s decedent. From- a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Respondent cited: De Bruine v. Voskuil, et al., 169 N. W. 288.

' Hon. Joseph H. Bottum, Judge. The defendant, Michael Papernak, was convicted of the crime of grand larceny, and he appeals. (1) To point one of the opinion, Respondent cited; State v. Fullerton Lumber Co., 152 N. W. (S. D.) 708; State v. 'Sysinger, 125 N. W. ('9. D.) 879. (2) To point two, ‘Respondent cited; People v. Clark, 39 Pac. (Cal.) 53; Com. v. Spencer, Ann. Cas. 1913, D. 552; 16 C. J- 572.

Hon. Alva E. Taylor, Judge. Action by C. H. Taylor, ag'ainst E. I. Bullock, and another, for an accounting and settlement between plaintiff as lessor, and lessee Bullock, for foreclosure of chattel mortgages, and for appointment of a receiver pendente lite. From' a judgment for plaintiff and in, part for defendant A. P. McMillan, as mortgagee, plaintiff appeals.

'Appeal from Circuit Court, Marshall 'County. Hon. Raymond L. Diudman, Acting Judge. Action by Martin Rien, against A. W. Thomson.' From a judgment for plaintiff, and from an order denying new trial, defendant appeals.

Hon. Alva E. Taylor, Judge. Action by Peter Mintener Lumber Company, a corporation, against Gustav Janisch and others, to enforce a mechanic’s lien upon a homestead. From a judgment for plaintiff, and from an order denying a new trial, defendant James Valley Bank appeals. (i) To point one of the opinion, Respondent Peter Janisch, cited: Keim v. Rand, 37 S. D. 408. (3) To point three, Respondent Peter Mintener Lumber Company cited: Schmoll v. Lucht (Minn.), 118 N. W. 555.

How. Raymond E. Dtixman, Judge. Action by Oscar Ai. Olson, as Administrator of the Estate of Thomas A. Cunningham;, Deceased, against the Chicago, Milwaukee & St. Paul Railway Comípaiw, a corporation, to recover damages for negligent killing of plaintiff’s decedent. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (3) To point three, Appellant cited: Hinz v. C., B. & Q., (Wis.) 66 N. W. 718; N. P. Ry. Co. v. Hambly, 154 U. 'S'. 357.

Original preceding by Emma A. -Cranmer and S. H. Cranmer, against Frank Anderson, as Judge of the Circuit Court of the Fifth Judicial Circuit of the State of 'South Dakota, seeking a writ of mandamus to compel respondent as Circuit 'Judge to enter in his court a new order in accordance with the modification by the Supreme Court of an order of the circuit court appealed from.

Hon. Frank B. Smith, Judge. Action by George Teesdale, against William Liebschwager and others, to recover damages for alleged malicious prosecution. From; a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Original action by the State of South Dakota, on the relation of James Card, against C. E. Gray, Mayor of Rapid City, 'South Dakota, John D. Newcomer and others,-as City Commissioners of Rapid City, South Dakota, and J. H. Mathias, City Auditor- of said Rapid City, to have two City Manager elections held' in Rapid City declared null and void, and to enjoin defendants from issuing certificates of election to Commissioners alleged to have been elected under City - Manager law.

Original preceding in mlandam.us by the State of South Dakota, upon the relation of H. D. Bveland, H. C. Preston and Hug'h Smith, constituting the State Tax Commission, against John P. Erickson, as County Auditor of Hughes County, South Dakota, defendant, and the Eirst .Congregational Church of Pierre, a corporation, intervenor, to compel defendant County Auditor to place upon the tax lists two certain tracts of land situated in Hughes County.

<p>Appeal from ¡Circuit 'Court, 'Union County. Hon. Robert B. Tripp, Judge.</p> <p>Action by E. W-. Miller, against J. A. -Miller. Appeal from an order refusing to vacate- a judgment of dismissal in favor of plaintiff.</p>

•'Appeal from! Circuit Court, Tripp 'County. Hon. William Williamson, Judge. Action by John. F. 'Corner, against James O’Malley and another, for injunctive relief against defendant’s entry upon and cropping of plaintiff’s homestead; defendants counterclaiming for affirmative injunctive relief. From an order sustaining demurrer to tlie counterclaim, defendant appeals. (2) To point two- of the opinion, Respondent cited: Note f. to Moore v. Halliday, 99, Am. St. 742.

Hon. Alva E. Taylor, Judge. Action by Peoples ’State Bank, a corporation, against E. J. Karlen and Louesia Karlen, involving attachment of defendants’ property. From an order refusing to dissolve an attachment, Defendants appeal. (i) To point one of the opinion, Appellants cited: Dawley v. Sherwin, 5 S. 'D. 594. Respondent cited: Tessier v. Englehart, 18 Neb. 167, 24 N. W. 734.

Hon. Louis L. Fujegkr, Judge. Alction by Atugust Aulwes against The Fanners Bank of Humboldt, a corporation, for conversion of collateral security. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (i) To point one of the opinion, Appellant cited: 21, R. C. L. page 673; Forsyth Bank v. Davis, 38 iS.

H,on. Frank Anderson, Judge. Action by Ward Grandpre against the Chicago, Milwaukee & St. Paul Railway Company, a corporation, to recover damages for alleged personal injuries. From- an order overruling a demurrer to the complaint, defendant appeals. (2) To point two of the opinion, Appellant cited: St. D. & S. F. R. Co. v. Conarty, 238 U. S. 243; 39 D. Ed'. 1290; O’Malley v. South Boston Gas Eight Co. (Mass.), 32 N. E. 1119; Nordstrom v. Spokane, etc., 'Ry.

Hon. E. W. Coolidge, Judge. Action by the Paper Supply Company, a corporation, against J. MacDonald. Eroni an order setting aside a default and permitting defendant to answer and defend, plaintiff appeals.

. Hon. E. W. Coolidge, Judge. Action by the National Casing Company, a corporation, against Julius Schmechel. From an order excusing defendant’s default before judgment, and granting leave to answer and defend in the suit, plaintiff appeals.

<p>1. Appeals' — Error—Insufficiency of Evidence — Trial to Court, Findings By Incompetent Evidence Presumed Rejected.</p> <p>Where trial was to court without jury, Supreme Court, in determining alleged error and in determining sufficiency of evidence to sustain findings, will presume that trial court rejected all incompetent and improper evidence.</p> <p>2. Appeals — Sufficiency of Evidence — No Assignment Re Denial of New Trial, Non-review of Question.</p> <p>Without assignment of error re denying new trial, question of sufficiency of evidence to sustain findings will not he reviewed.</p>

<p>Appeal from Circuit Court, Clay County. Hon. Robert B. Tripp, Judge.</p> <p>Action by John M. Carr, against Wakonda Independent Consolidated School District No. I of Clay County, S. D., W. O. Knight and others as comprising the Board of Education of-said AVakonda Independent Consolidated School District No. i, to contest the legality of an attempted organization of said Wakonda Independent Consolidated School District.</p> <p>(1) To point one of the opinion, Respondents cited: Stearns v. State (Oída.) 100 Pac. 909; State ex rel., Walklin v. Shanks (S. D.) 125 N. W. 122.</p> <p>(2) To point two, Appellant cited: Webster’s Die. “Business,” and “Public.”</p> <p>Respondents cited: Malmgren v. Phinney (Minn.) 18 L. R. A. 753, 52 N. W. 915.</p> <p>(3) To point three, Appellant cited: Miller v. Schallern (N. D.) 79 N. AV. 865; Howser v. Petter (N. D.) 79 N. W. 1018.</p> <p>Respondents cited: Sec. 7210, Code 1919.</p> <p>(4) To point four, Appellant cited: Vallier v. Brakke, 7 S. D. 343; McKittrick v. Pardeen, 8 ‘S. D. 39.</p>

Original proceeding by A. 'Chris Jensen, against the City of Rapid City, a municipal corporation, and C. E. 'Gray as Mayor, and John D. Newcomer and others as City Commissioners of said City, for a writ of mandamus, requiring defendants to issue to plaintiff such special sewer assessment certificates as he claims to be entitled to.

Hon. Robiírt B. Tripp, Judge. Action by The Western Surety Company, a' corporation, against Jacob Walter and others, to recover as indorsee of a negotiable promissory note given by defendants to a county and by it indorsed to plaintiff. From, a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

<p>1. Malicious Prosecution — Forcible Entry, Detainer, Magistrate’s Finding No Offense Committed', As Proof of Arrest Without Probable Cause.</p> <p>Where a committing magistrate, upon examination of the charge under Sec. 3952, Code 1919, making forcible entry upon or detention of land, etc., a misdemeanor, found and determined that no public offense had been committed, and discharged defendant and terminated the prosecution, such action was proof of arrest without probable cause.</p> <p>2. Same — Question of Malice Re Prosecution, One of Fact For Jury.</p> <p>The question whether or not one acted maliciously in starting a criminal prosecution and causing another’s arrest, is a question of fact for determination by jury.</p> <p>3. Same — Land Entry - Under Conditional Lease, Prosecution • Por, Groundless.</p> <p>There being little if any material conflict in evidence, which shows tbat plaintiff entered defendant’s premises with his consent under a conditional lease, defendant’s charge of malicious prosecution based thereon was groundless.</p> <p>4. Same — Advice of State’s Attorney and Other Counsel — Communication of Pacts, Good Faith, Question Por Jury.</p> <p>Whether or not a party communicated to State's Attorney and other lawyers with whom he advised, all facts known to him bearing on guilt of accused, or whether accused acted in good faith, upon such advice, are questions of fact for jury.</p>

<p>Disbarment — Unprofessional Conduct— Allegation of Attorney’s Purchase of House on Lot, Giving Note in Part Payment, Purchasing Deceased Vendor’s Note, Agreeing to Pay Same, Then Offsetting Same Against Attorney’s Note, Filing Decedent’s Note Against Estate — Finding of Non-purchase of Lot and Nonsssumption of Decedent’s Obligation — Proceeding Dismissed.</p> <p>Where, in a proceeding for disbarment, the charges allege that H. one of the respondents, bought a lot from M, and a house thereon, and in part payment agreed to pay a $225 note executed by the vendor (afterwards deceased,) and that he and his law partner thereafter filed said note against M’s estate; it being conceded that H. C. bought the house, and- the evidence showing that the claim against the estate was afterwards bought by respondent and off-set against a note for $100 given by H. C. as part of said purchase money; held, that if H. C. had-bought the lot and assumed and agreed to pay said $225 note, then respondents’ acts were reprehensible and unprofessional; yet, referee having properly found that H. C. did not buy the lot and did not assume- or agree to pay said obligation, respondents are exonerated from -all charges and proceeding dismissed.</p>

Hon. Frank Anderson, Judge. Action by Herb Folmer, against John A. Hanson and another, to recover damages on a replevin bond in claim and delivery. From: a judgment for plaintiff, and from an order denying, new trial, defendant, appeals. (2) To point twb of the opinion, appellant cited: Shinn on Replevin, Sec. 679. Respondent cited: Wetmore v. Rupe, (¡Cal.) 3 Pac. 851.

Hon. Frank Anderson, Judge. Action by the State of 'South Dakota, on the relation of Loella King, formerly Loella Stewart, against Chester Hopps, for support, maintenance, etc., by defendant of an alleged bastard child. From an order overruling a demurrer to the complaint, defendant appeals. Appellant cited: 'State ex rel. Berg v. Patterson, (S. D.) loo N. W. 162; State ex rel.

Hon. Frank; Anderson, Judge. Action by O. B. Bien, as County Treasurer of Roberts County, Couth Dakota, against S. J. Simonson, to enforce collection of delinquent personal taxes. From an order denying defendant’s motion for change of venue to county of his residence, he appeals. (i) To point one of the opinion, appellant cited: Hockett v. Hockett, 34 S. D. 586, 149 N. W. 5150; Secs. 2327, 2328, Code 1919.

Action by John Gross against the City of Bowdle, a municipal corporation, C. W. Young, as Mayor, A. A. Steltzer, as City Auditor, and H. C. Baer, as City Treasurer of said City, to enjoin a sale of certain special assessment sewerage bonds of said City. From an order sustaining a demurrer to the complaint, plaintiff appeals. Appellant cited: Sec. 6413, Code 1919; Ottumwa v. City Water , Supply Co., 119 Fed. 315; 59 L. R. A. and note. Respondent cited: Nat. Life Ins.

Hon. Ajlva E. Taylor, Judge. Action by N. E. Mundon against A. G. Greenameyer and another. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. Appeal .from judgment dismissed.. (2) To point two of the opinion, appellant cited: Haley v. Haley, 20 S. W. 845.; Boyd v. Hawkins, 50 Miss. 3.35; Merchants National Bank v. McKinney, 1 S. D. 78.

Hon. Robert B. Tripp, Judge. Action by (Maria B. Sweeney Yellow-Iiair, against C. W. Pratt, and Dan Lynch as Sheriff of Charles Mix County, South Dakota, to enjoin an execution sale of plaintiff’s realty. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (4) To point four of the opinion, Appellant cited: Robinson v. Charleton, 73 N. W. (Ia.) 616; Garner v. Freeman, 118 Am. St. Rep. (La.) 361.

Action by Orms'by McHarg against Commonwealth Finance Corporation, a domestic corporation, Henry D. Tudor and others; James E- Carlson and others intervening; for an accounting b3 the president and certain directors of defendant corporation, for restoration to the corporation of alleged misappropriated funds, for restraining further official acts, and for other relief; intervenors asking for a receiver of the corporation.

Original proceeding by G. E. Macke)’ against Jay Reeves, as State Auditor, to compel defendant to issue a warrant on the state treasurer in favor of plaintiff. (1) To point one of the opinion, Plaintiff cited: Laws 1919, Gh. 39; 'Sec. 6942, Code 1919; State ex rel. Longstaff v. Anderson, ('S. D.) 146 N. W. 703; Laws 1901, Ch. 176.

In the Matter of 'Drainage Ditch No. 12, Minnehaha County, South Dakota. Appeal of Myrtle F. Jones and others. From an order of the county commissioners of Minnehaha County establishing the drainage ditch in controversy, contestants, Myrtle F. Jones and others, appealed to the Circuit Court, which court made findings and rendered judgment for petitioners; from which judgment and from an order denying a new trial, protestants appeal.

The defendant, J. W. Mosher, charged with the offense of receiving stolen property with knowledge that it had been stolen, was, upon trial found “guilty of receiving stolen property,” and he appeals. Appellant cited: xó C. J. 1x08-09; State v. Peterson, 122 N. W. 667; Ty. v. Conrad, (Dak.) 46 N. W. 605; State v. Johnson (N. D.) 54 N. W. 547; People v. Tilley (Cal.) 67 Pac. 42.

The defendant, John Heintz, was convicted of the offense of shooting with intent to kill, and he appeals. (i) To point one of the-opinion, Appellant cited: Williams v. .State, 12 Texas 395; 1 Wharton’s Criminal Raw (9th Ed.) Sec. 641; Secs. 4051, 4012 Code 1919; People v. Pine, 53 Cal. 263. Respondent cited: State v. Otto, (S. D.) 161 N. W. 340; State v. Stewart, 37 6. D. 263, 137 N. W. 1046; ’State v. Morse, 35 'S. D. 18, 150 N: W. 293.

Hon. Frank B. Smith, Judge. Action by the Board of Trustees'of Lawrence College, a corporation, against 'Rosalie M. Hoffman and another. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. J. H. Exon, Judg'e. Action by Theodore O. Loveland and another, co-partners under the firm name and style of Brenard Mfg\ Company, against A. L. Kitterntem, to recover the selling price of a piano and certain printed matter alleged to have been sold by plaintiffs' to defendant. 'From a judgment for defendant, and from an order denying a new trial, plaintiffs appeal. Appellants cited: Aldrich et al., v. Wilmarth, 3 S. D. 523; Sec. 3977, Comp. Laws 1887.

Hon. Frank Anderson, Judge. Action by Harvey L. Zweck, sole Trader under the trade name of Aberdeen Dry Cleaning Works, against the Aberdeen Laundry & Dry Cleaning Company, a corporation, W. J. Tiffany and others, to recover damages for unfair competition and for injunctional relief. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon John T. Medin, Judge. In an action and prosecution by the town of Valley Springs, a municipal corporation, the defendant, for selling goods as a victed in justice court under an ordinance, for selling goods as a transient merchant without paying a license fee therefor; and upon appeal by him to the circuit court, was there convicted and he appeals. (1) Under point one of the opinion, Appellant cited: Laws 1903, Ch. 190, Sec. 1; Secs.. 10420, 19427, Code 1919.

Hon. Joseph PI. BoTTum, Judge. Action by William -School, against F. E. Hoagland, to recover a commission 011 alleged sale of realty. From a judgment for defendant, and. from an order granting a new trial, defendant appeals.

The Defendant, John Wagemann, was convicted of the crime of rape, and he appeals. Appellant submitted that: Proposed new evidence should be deemed true, and cited: McClellan’s Estate, 21 S. D. 209. Respondent cited, to same point: State v. Southmayd, 37 S. D. 37s, 158 N. W. 404.

Hon JOHN T. MedtN, Judge. Action by George E. Adams, against the Northwestern Telephone Exchange System-, a corporation, to enjoin defendant from cutting off plaintiff’s telephone service and to have a certain rental contract declared in full force and effect. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Appellant cited to point that rental is not fixing of a “rate;” Dakota Cent.

Hon John T. Medin, Judge. Action by Tom Qualseth, against Gunerius Thompson, to recover an alleged balance due plaintiff for work and labor performed for defendant in cutting cottonwood logs into lumber. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: i R. C. L., page ig6, Sec. 3-2; 1 Corpus Juris, page 556, Sec. 78; Nassoig v. Tomlinson (N. Y.) 51 A. S. R. 695; Fuller v. Kemp, 138 N. Y. 321, 20 L. R. Ai. 785.

Hon. Frank Anderson, Judge. Action by Iver Hanson, against H. G. Harris. From a judgment for plaintiff, and from' an order granting a new trial, defendant appeals. On defendant-appellant’s motion to amend settled record.

Hon. Frank Anderson, Judge. Action by the Northwest Manufacturing and Milling Company, a South Dakota corporation, against G. H. French and another and the Associated Chemical Company, an Iowa corporation, and another, for cancellation of corporate stock in plaintiff corporation. From a judgment for plaintiff, and from an order denying a new trial, defendants appeal.

Hon. Frank B. Smith, Judge. Action by the State Bank of Cuthbert, a banking corporation, against T. J. Carlton, to recover upon one promissory note and for reformation of and judgment upon another note. From' an order sustaining plaintiff’s motion that the action be tried before the court without a jury, defendant appeals. (1) To point one of the opinion, Appellants cited: Leisch v. Baer, 24 S'. D‘. 184; White v. Railway Co., 5 Dak. 508.

<p>Disbarment — Inexcusable, Unjustifiable, Unprofessional, Dishonorable Conduct — Wrongful Misappropriation of Clients’ Funds, Non-appreciation of Such Wrongs Committed — Non-culpatory, Impecunious Circumstances — Inexcusable Giving of False Testimony — Referee's Findings Re, and Conclusions as Unprofessional and Dishonorable Conduct, Sustained as Warranting Disbarment.</p> <p>Where in a proceeding for disbarment, the conclusion of" the. referee based upon the testimony and facts as found, are to the effect that the attorney has been guilty of inexcusable, unjustified, unprofessional and dishonorable conduct in violation of his duties and obligations as an attorney; that he has wrongfully misappropriated his clients’ funds, which may have been due to the impecunious situation of accused and might in some instances be excused in case of an inexperienced practitioner, yet accused did not duly appreciate the wrongs he had committed, but attempted to avoid consequences thereof by unwarranted accusations against the wronged parties; that in his testimony in one case he gave false testimony without excuse, and inexcusable on ground of ignorance or misinterpretation of his title to realty, all of which misconduct constitute such unprofessional and dishonorable conduct as bring disgrace upon the profession; this 'Court’s opinion is that accused is an unfit person to practice law in courts of this state and that he should be disbarred and his license cancelled.</p>

Appeal ‘from Circuit Court, Grant County. Hon. Frank Anderson, Judge. In the Matter of Contest by E. J. Fosfoerg (who contests on his own behalf and that of other electors, tax payers and freeholders of the district affected, similarly situated,) of an-election for consolidation of school district Nos. i and 4 of Troy Township, Grant 'County, South Dakota, and School District No. 63 of Waverly Township, 'Codington County, South Dakota.

Hon John T. Medin, Judge. Action by May Ennever, as guardian of Dorothy Rigdon, a minor child, to recover damages for an alleged indecent assault made by defendant upon the person of said minor child. Erom a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. William Williamson, Acting Judge. Action by the Fowler Methodist Episcopal Church of Letcher, South Dakota, a corporation, and Laura Eitel and others as trustees of said corporation, against the Congregational Conference of South Dakota, a corporation, and the Congregational Church of Letcher, South Dakota, a corporation, to set aside a deed of conveyance, and to restrain the defendant Congregational Church of Letcher, from taking- possession and disposing of the church…

<p>Appeal from Circuit Court, Hughes 'County. Hon. John F. Hughes, Judge.</p> <p>Action by Charles E. Hyde against Napoleon B. Gearhart and others, for the purpose of off-setting alleged mutual judgments in favor of plaintiff against a judgment rendered in favor of defendant N. B. Gearhart against the present plaintiff. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.</p> <p>(1). To point one' of the opinion, Respondents cited: Churchill & Alden Go. v. Ramsey (S. D-.,-) 172 N. W. 779; Ames v. Bates, 119 Mass. 397.</p> <p>(2) To point two, Appellant cited: Sec. 2307, 'Code 1919; 17 Am. & Eng. Enc. of' Law (2nd ed.) 884; Empire Land 'Co. v. Engly, 18 Colo. 388.</p>

Hon. John T. Msdin, Judge. Action by E. K. Axtell, against Peter Muller, to enforce specific performance of an alleged contract for sale of land. Erom a judgment for plaintiff, and from an order denying a new trial, plaintiff appeals. Appellant cited: iSec. 836, Code 1919; Wharton v. Talbert (S. C.) 63 S. E. 1056; case note to Spriger v. City Bank & Trust Co. (Colo.) 1917 A. Ann.

Hon. E. H. Vance, Presiding Judge. The defendant, Allen Goethal, was complained of for the alleged misdemeanor of wilfully and unlawfully producing and displaying to the public a dramatic performance, to-wit, a motion picture show as a presentation and exposition of a drama by means of moving pictures, on Sunday. From an order sustaining a demurrer to the complaint, the state appeals.

Hon. Frank Anderson, Judge. ■ Action by J. 'Jaeggi, against the First National Bank of Eden, South Dakota, a corporation, and J. H. Green, Oscar Hagen, Henry Kettler, Joseph Opitz and Frank .Schlickewy, Jr., Board of Directors, to recover on contract for legal services performed. - From a judgment upon directed verdict for plaintiff, against all defendants save said bank, and from an order denying a new trial, they appeal.

Hon'. Louis L. Finger, Judge. Action :by Theodore Strand, against William Boll, to recover upon promissory notes assigned to plaintiff before maturity. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (1) To point one of the opinion,' Appellant cited; Hines v. McCombs, 2 Ga. App. 675, 58 'S. E. 1124; Mitchell v. Ruth-ford, 9 Ga. App. 722, 72 S'. E. 302. Respondent cited: Hoagland v. Crum (111.,) 55 Am.

Hon. Rouis R. FpEEGER, Judge. Action by William Johnston and another, co-partners under the name and style of Johnston Bros. Clay Works, against J. W. O’Connell, Elmer O’Connell and Walter O’Connell, to recover the price of certain silo material shipped by plaintiffs to defendants. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Hon. Joseph H. Bottum, Judge. Action by H. E. Tennant, against James Rafferty, as administrator of the estate of Michael F. Rafferty, deceased, and others, to enforce specific performance of a contract for sale of realty. From an order sustaining a demurrer to the complaint, plaintiff appeals. (i) To point one of the opinion', Respondents cited: George v. -Conhaim (Minn.) -37 N. W. 791; Shumway v. Kitzman (S. D.) 134 N. W. 325; Meyer Land Co. v. Pecor ('S. D.) 101 N. W. 39.

Hon. Luvi McGu®, Judge. Action by George Thomason, against A. R. Britian and others, to recover on a promissory note; A. R. Britian being treated on appeal as sole defendant. From a judgment .for Plaintiff, and from an order denying a new trial, Plaintiff appeals-

Hon. Wileiam N. Skinner, Judge. Proceeding in habeas corpus by Plerman C. Nannestad, against Olaus Nannestad and Sina Nannestad, to determine the custody of Adolph Melvin Nannestad, his minor son. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: Norval v. Zinsmaster, (Neb.) 77 N. W. 373, 73 Am. St. Rep. 500..

Original application by Louise E. Youngblood and others, plaintiffs, for an order nunc pro tunc, authorizing Judge Medin, as successor in offiice of Joseph W. Jones as judge of the circuit court, to settle the record in said cause; the Grand Lodge of the Ancient Order of United Workmen of South Dakota, a corporation, being defendant.

Hon. William Williamson, Judge. Action by Edward S'hives and another, against Sydney E-Sinclair and others as co-partners under the name of the Vivian Land Company, The Vivian Land Company, a Partnership, Robert ¡S. Sinclair, as trustee for the Vivian Land Company, a Partnership, and Royal H. Holbrook, to compel specific performance of a contract of sale of land. From a judgment for Plaintiffs, and from an order denying a new trial, Defendants appeal.

Hon. William N. Skinner, Judge. Action by Stanley Politick, against the Minneapolis & .'St. Louis Railroad 'Company, a corporation, to recover damages for personal injuries. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited: St. Louis, San Francisco & Texas Ry. 'Co. v. Seale, 229 U. S., 57 L. Ed. 1129.

. Appeal front Circuit Court, -Campbell County. Hon. Joseph H. Bottom, Judge. Action by George W. Lynn, Administrator of the Estate of John F. Nicholson, deceased, against Martin J. Sehirber. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Motion to dismiss appeal.

<p>1. ■ States — Prohibition—Issuing, Selling, State Cement Commission . Bonds, Whether Constitutional, Ex-parte Views of Judges “In Ke Opinion of Judges” Not Court Decision, But Advisory.</p> <p>The ex-parte views of the Judges of the Supreme Court (In Re Opinion of Judges, 43 S. D. 648, 180 N. W. 957) did not amount to a court décision, but were merely advisory in nature and effect, and not binding on this or any other court (following In re Opinion of Judges, 34 S. D. 650, 147 N. W. 729.)</p> <p>2. Same — Statutes, Title, Sufficiency — Legislative Bill Be State Cement Commission, Whether Lawfully Adopted, Appi’oved, Enrolled1 Bill Conclusive — State Indebtedness for Constructing Cement Plant, Constitutionality — Limit of State Indebtedness— State Operation of Cement Plant, Whether Taking Property Without Due Process — Eminent Domain, Bonds, State Cement Plant, Whether Taking Private Property for Public Use — Taxation, State Construction of Cement Plant, Whether Taxation Without Peoples Consent — State Cement Plant Statute, Whether Granting Special Privilege — Taxation for State Cement Manufacturing Business, Whether for “Public Purpose”— State Cement Manufactory, Whether Violative of Federal Fourteenth Amendment — Views Be Opinion of Judges Adopted.</p> <p>The following legal questions and disputations in the present proceeding, are resolved herein toy adoption by the Court as holdings thereof of the views of the Judges thereof as expressed in In re Opinion of Judges, 43 S. D. 648, 180 N. W. 957, to-wit: (1) The title to Chap. 324, Laws 1919, is sufficient; (2) that from house to senate journals, and enrolled bill, said Chap. 324 was duly and constitutionally adopted and approved; (3) that the power of the state to acquire lands, etc., and to execute, provisions of Sec. 10, Art. 13, Const., in acquiring and operating a state cement plant, and (under Sec. 11) to pledge such cement plant’s and state’s credit to provide funds for such purpose is by 'Sec. 11 taken from operation of Sec. 1 re limit of state indebtedness for internal improvements, and also out of operation of Art. 11, Sec. 1, limiting duration of state debt, etc.; (4) that said power of state is not violative of constitution re due process, just compensation, taxation, equality and uniformity, privileges and immunities, taxation, public purposes, aggregate indebtedness under Laws 1919, Chap. 324, and is authorized by Const., Art. 13, Secs. 2, 10 and 11, and is valid as against Art. 6, Secs. 2, 13, 17 and 18,. and Art. 13, Sec. 2; (5) that the purpose"'of said Chap. 324 is a public purpose re taxation thereunder, in view of Const., Art. 11, Sec. 2, and Art. 13, Sec. 10; (6) that said Chap. 324, is not violative of Fourteenth Amendment to Federal Constitution concerning due .process and equal protection of laws.</p> <p>3. State Cement Manufacture — Facts Proven Showing Such Manufacture for a Public Purpose — Cement Products Publicly Procured, People’s Necessity; Cement a Publicly Necessary Material; Its Use Increasing; Serious Shortage in Past, and Threatened, Delaying Public, Private, Enterprise; Cement Materials Abundantly Existent in State; No Privately Owned, Operated Cement Plants in or Near State; State Manufacture Conducive to Public Welfare, Etc., Execution of Statute Not Subsersive of Due Process Re Constitution — Writ of Prohibition Denied.</p> <p>Defendant State Cement Commission under its answer herein, produced evidence supporting its allegations establishing ultimate fact that state manufacture of cement is carrying out of public purpose; and present decision is based upon views expressed in In re Opinion of Judges, 43 S. D. 648, 180 N. W. 957, and on findings of fact filed herein showing cement and products necessary to people, and unprocurable through individual effort; that in construction of highways, etc., cement is a necessary material, its use rapidly increasing everywhere, a serious shortage threatened, interfering with and delaying public and private enterprise, that such materials are abundant within state, that no privately owned and operated plants exist within or near state border, and that such manufacture, and sale is promotive of public welfare, etc., and equality of economic opportunity, and will not deprive plaintiff of his. property without due process; and writ of prohibition is denied.</p>

Hon. Frank B. Smith, Judge. The defendant, George W. Egan, was convicted of the offense of presenting false and fraudulent proofs in support of his claim for loss under a contract of insurance, and from a judgment of conviction, and from an order denying a new trial, he appeals. (2) To point two of the opinion, Appellant cited: Sec. 4717, R. C. 1919; Respondent cited, re demurrer: State v. 'Webb (N. D.) 162 N. W. 358; Peo. v. Grutz, L,. R. A. N. S. 1915D, 229.

Hon. Frank Anderson, Judge. Action by 'Grant Robinson, against N. E. Nelson, as Clerk of the Circuit Court of Brown County, S. -D., and J. FI. Suttle, to recover money paid into court during realty foreclosure, as rents and profits, and by clerk of court paid to mortgagee’s assignee. From an order sustaining a demlurrer to the complaint, plaintiff appeals. (,i) Under point one of the opinion, Respondents cited: DeBout v. Pense, 31 S. D. 619.

<p>I. Statutes — Initiative and Referendum, Referendum Re Repealing' Acts Re Primary Election Law — Enactments, Non-statements Re Taking Effect,' Petitions for Referendum Eiled June 28th, Legislative Adjournment March 4th, 90 Days Statute, Whether Applicable — Submitting to Vote “Before Going Into Effect,” Effects,</p> <p>Under the five legislative enactments in question; one Ohap. 329, Laws 1921, repealing Secs. 7125-6, Code 1919, relative to paramount issues and joint dehates; Chap. 330, repealing Secs. 7163-5 relating to official party indorsement of appointive officers; Chap. 331, relating to party platform; Chap. 332, repealing Secs. 716'6-7175 relating to candidates for postmaster, and Chap. 33-3, repealing Secs. 7127-9 relating to publicity pamphlet, neither of said acts describing when it should take effelct; and Const., Art. 3, Sec. 1, providing among other things that the people -reserve the right to require that any laws enacted shall be submitted to vote of electors of the state before going into effect, except, etc.; and Art. 3, Sec. 22, providing that no act shall take effect until 9 0 days after adjournment of the session at which it passed, unless in case of emergency, etc., and Sec. 5069, Code 1919, providing (with certain exceptions) that a petition for referendum of legislative enactment shall be filed in office of secretary of state within 90 days after adjournment of Legislature passing the law; and Sec. 5111, Code 1919, providing that, subject to constitutional provision and statute relative to vetoes and referendum, a legislative act not prescribing when it shall take effect * * takes effect on first day of July after its passage, held, that the provision of Const., Art. 3, Sec. 1, relating to referendum are not self-executing, that relator’s contention that the purpose of said provisions is to permit invoking of referendum any time prior to time when act becomes effective, and that July 1st is such date, and that therefore Sec. 5069, Code 1919, imposing the 90 day limit for filing such petitions, curtails and abridges constitutional rights and privileges under said constitutional provision, is untenable; that the words “shall be submitted to a vote * * * before going into effect” clearly relate to the word “submit,” and not to the time within which referendum .petitions may be filed. So held, where the Legislature which enacted said laws adjourned March 4th.</p> <p>S. Constitutional Law — Constitutional Provision, When Sell! executing, Declarations Re in Constitution, and By Courts — Provision Supplying Means of Enjoining, Protecting Right, or Enforcing Duty as Self-executing, and Eo Converso as Non-self-executing — Rule Re Referendum Provision.</p> <p>While constitutional provisions relating to referendum are sometimes declared in the Constitution to be self-executing, while in other cases they are declared by courts to be self-executing although not so declared in the Constitution, and eo converso; a constitutional provisions is self-executing if it supplies a sufficient rule for enjoying and protecting a right, or by which the duty imposed may be enforced; and where it requires performance of an act but provides neither officers, the means or mode in which the act shall be performed, appropriate legislation is essential and such provision is non-self-executing; the question always being whether the language of the constitutional provision is addressed to courts or the Legislature; does it indicate it was intended as a complete present enactment, this being determined from language used and of intrinsic nature of the provision, and if these and the liability thereby imposed is fixed by the provision itself, and there is no indication that the subject is referred to Legislature for action, the provision is self-executing. Constitutional provisions reserving to people power to enact or reject proposed laws at the polls are self-executing to the extent that they prescribe rules for exercise of the rights preserved, but where they merely create rights to be exercised in manner prescribed by general laws, they are inoperative until enactment of Legislation.</p> <p>3. Same — Non-specification in Constitution Re Time, Place of Filing Referendum Petition, Method of Signing, Date of Voting, Non-designation of Referendum Officer, Effect Re Referendum —Direction to Legislature to Enact Effective Legislation, Effect of Legislation Re Date of Filing Referendum Petition— Mandamus Applications Refused.</p> <p>Inasmuch as Const., Art. 3, Sec. 1, falls to specify time within which or place where referendum petitions may be filed, nor as to form of petition or method of signing or when acts shall ■be voted on, nor time when referred act shall take effect if voted upon favorably, and fails to impose duty upon any officer to cause the act to be brought before the people, and whereas it expressly directs Legislature to make suitable provision for carrying the provision into effect; and, Legislature having enacted Chap. 93, Laws 1899 (of which Sec. 5069, Code 1919, is a part) for declared purpose of carrying said constitutional provision into effect,' said provision, and Sec. 22, Art. 3, are held, non-self-executing; since without said legislation referendum clause! in Constitution would be ineffectual; and held, it was competent for Legislature in said act to fix period of 90 days after adjournment of Legislature within which the referendum petition might be filed, if such period is reasonable and “suitable.” State ex rel. Richards v. Whisman, 36 S. D. 260, wherein this Court stated obiter, that a proper referendum petition should have been filed “prior to the first day of July last,” explained, as not involving the question here determined, and as not having misled parties or counsel Immin; the question in said former decision having been initiative law could be amended by Legislature. that, the referendum petitions herein not having TNWir'flMMMft’ted to secretary of state within the time prescribed by 1wtf,. Itpplications for writs of mandamus will be dismissed upon the merits.</p>

Appeal .from Circuit Court, Spink County. Hon.' Alva E. TayloR, Judge. Action by A. V. Zarneke and E. T. Fryer, against Mike Kitzman, to recover a commission on an alleged sale of realty. From an order granting defendant a new trial, plaintiffs appeal.

Hon. Frank • B. Smith, Judge. Action by E .V. Green, against Flora M'cNeil, to enforce specific performance of an alleged contract to convey realty. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. (3) To point three of the opinion, Respondent cited: Elliott on Ev., Sec. 25.

Circuit Court, Walworth County. Hon. Josbpii Ii. Bottum, Judge. The defendant, Clifton C. Smith, was convicted of the crime of adultery, and he appeals. (u) To point one of the opinion, Appellant cited; People v. Brooks, 131 N. Y. 321; Schultz v. Railroad Co., 89 N. Y. 242.

Hon. Joi-in F. Hughes, Judge. Action, by Hayes-Lucas Lumber Company, a corporation, W. H. Carr and another, doing business as Miller Hardware Company, C. L. Lake and others, against Waldermar Wenzlaff impleaded with. Emil Gade, to foreclose mechanics -liens. From an order overruling a demurrer to the complaint and granting defendant- leave to answer, he appeals. Appellant cited, re the practice as to parties defendant: 15 Encyc. PI. & Pfac., page 574.

Hon. Wtuijam Wixxiamson, Judge. Action by the State of South Dakota, against William Casey and C. J. Hollenback, to recover upon a bail bond. From an order sustaining a demurrer to the answer, defendants appeal. (i) To point one of the opinion, Appellant cited; 3 R. C. L. 49, Secs. 58-9. Respondent cited: State v. Breen, 6 S. D. 537; 5 Cyc. p. 47; 6 C. J. p. 1943; Cameron v. Burger, (Oreg.) 120 Pac. 10.

<p>Landlord and Tenant — Oral Negotiations for Lease, Terms of Subsequently Written Lease and Rent Mortgage Refused by Plaintiff Prospective Lessee, Plowing of Land By, Effect Re Leasing, Estoppel.</p> <p>Where plaintiff, a prospective lessee and defendant land owner orally negotiated concerning a lease of land, any contract relative thereto to be put in writing, and defendant subsequently caused a lease and chattel mortgage for rent to be prepared, to which plaintiff refused to assent; he having subsequently gone on land and plowed over 40 acres; held, no lease was made and neither party intended a binding contract until its terms -were agreed upon and reduced to writing; nor did the fact that plaintiff plowed the land constitute a lease, nor estop defendant to deny its existence.</p>

Hon. Frank B. Smith, Judge. Action by E. E. Byrum, against Fred Dilts, to recover a commission on realty sale. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. (2) To point two of the opinion, Appellant cited; Schweitzer v. 'Connor ('Wis.) 14. N. W. 922; Schriner v. Dickinson, 20 S. D. 433, 107 N. W. 536. Respondent cited; Jones on Ev., p. 595, Sec. 742.

Hon. William N. Skinner, Judge. Action by J. A. Silvander, against John H. Molthan, to recover farm rentals. From an order sustaining a demurrer to the supplemental complaint, plaintiff appeals.

Hon. Frank Ainderson, Judge. Action 'by iSeth Teesdale, against the National Non-partisan League, an association of persons so known and styled and transacting business as a political organization, and others. From an order vacating and setting aside a judgment for plaintiff, plaintiff appeals.

Hon. Frank Anderson, Judge. Action by E. G. Redman, against S'. T. Easell and William Sikkink, to recover value of plaintiff’s alleged share of grain cut by defendant land owner after defendants’ mortgage foreclosure and sheriff’s deed thereunder. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals. (2) To point two of the opinion, Appellant cited: Simmers v. Loose ('Mich.) 86 N. W. 383, .24 Cyc. 1399; Kane v. Detroit Life Ins.

Hon. Wirriam N. Skinner, Judge. The defendant, Arthur O. Taylor, was convicted of the crime of obtaining money under false pretenses, and he appeals. (3) Tó point three of the opinion, Appellant cited: State v. Pickett (Mo.) 74 S. W. 844, 174 Mo. 663; State v. Withee, 87 Me. 462, 32 Atl. 1013. Respondent cited: State v. Paul, 41 >S. D. 40, 169 N. W. 739; Commonwealth v. Huliburt (Me.) 12 Mete., 446; State v.. Williamls, 139 Ind. 43, 38 N. E. 339, 47 Am. 'St. Rep. 225.

Hon. Robert B'. Tripp, Judge. Action by Alexander Bucholz, against 'Martin Hinzmaü and Henry M. Hinzman, to enforce specific performance of a contract for purchase of realty.- From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

<p>Appeal from Circuit Court, Minnehaha County. Hon. Louis L. Fueeger, Judge.</p> <p>Action by L. L. Eno, against C. E. Knox, to recover damages for breach of contract for sale of realty. From an order overruling a demurrer to the complaint, defendant appeals.</p> <p>Appellant submitted that; The action is personal in nature of trover to recover one co-tenant’s share of damages alleged to have been sustained by reason of conversion of said automobile by defendant, and it will not lie; citing 7 R. C. L. 909; Bliss on Code PL, 2nd ed., 24; Pomeroy’s 'Code Remedies, 3rd ed. Secs. 221, 223; Clapp v. Pawtucket Institution for Savings (R. I.) 2 A. S. R. 915.</p> <p>Respondent submitted that; This is an action'for breach of contract, and mere fact that the automobile' was given in first payment does not, nor does the complaint, warrant supposition that an action is brought sounding in tort for conversion; citing Secs. 889, 890, 272, Code 1919. . ,,</p>

■ Appeal front ''Circuit Court, Day .County. Hon. Frank Anderson, Judge! Proceeding under the Workmen’s Compensation Daw, by the Dependents of Claude D- Shaw, deceased, against The Fred -C. Harms Piano Company, a corporation, and the 'United States Fidelity and Guarantee Company, a corporation, for recovery of a claim for damage's resulting from the death of said decedent through negligence of defendant' Piano Company.

-\ppeal from Circuit 'Court, Davison County. Hon. Frank B. Smiti-i, Judge. Action by J. F. Youtcey, a resident elector and taxpayer, against Badger School District No. 43 in Davison County, South Dakota, etc., and others, to enjoin further issue of school district bonds. From an order denying an injunction pending an appeal to the Supreme Court, plaintiff appeals.

Hon. William N. Skinner, Judge. Action by Emma Baxter, as administratrix of the estate of Orville Claude Box, deceased, against Herbert Park, to recover damages for the death of plaintiff’s decedent resulting from- defendant’s negligence; and an action by Mary Dowd as administratrix of the estate of John Joseph Dowd, deceased, to recover damages resulting from the death of said decedent through defendant’s negligence.

Hon. Frank Anderson, Judge. Action by Tabour Realty Company, a corporation, against N. E. Nelson as Clerk of the Circuit Court of Brown County, South Dakota, and J. H. Suttle, to recover the amount of a certain alleged fund in defendant Suttle’s hands and formerly in hands of a receiver in a foreclosure action against parties who are alleged assignors of said fund to plaintiff. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Hon. John T. Mkdin, Judge. Action by Edna Alice McAlpin, against Charles F. 'Gremmels, to recover damages for seduction. From an order overruling q demurrer to the complaint, defendant appeals. (2) To point two of the opinion, Respondent cited: Wiley v. Fleck (la.) 178 N. W. 414; State v. Donovan, 128 la. 44, 102 N. W. 791.

Hon Frank Anderson, Judge. Proceeding in probate court 'by Fred Hauer, Ernest Hauer, E. A. Micklau, Otillie Bihrle, and Ririhold Micklau, against Otto F. Hauer, to contest the will of Natalie Hauer, deceased. The county court having admitted the will to probate, contestants appealed from' such judgment and order to the circuit court, from a judgment of which latter court affirming the judgment and order so appealed from, contestants appeal.

Hon. John F. Hughes, Judge. Action by Mads N. Overgaard, against X. B. Goodhope, for cancellation of a contract for exchange of property. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon Frank Anderson, Judge. Action by the Lampert Lumber Company, a corporation, against Thomas Pexa, to recover an alleged balance in hands of defendant employee belonging to plaintiff. From a judgment for plaintiff upon. directed verdict, and from an order denying a new trial, defendant appeals. (2) ' Under point two of the opinion, Respondent cited: 'Fabian v. Wasatch Orchard Co. L. R. A. 1916D, 829.

Hon. William Willtamson, Judge. In the matter of the Estate of Victor IT. 'Stevens, deceased.

Hon Robert B. Tripp, Judge. Action by Dakota National Bank, a corporation, against Olaf Johnson and Inga Johnson, to have a deed declared to be a mortgage and to foreclose same. From an order granting defendant Inga Johnson’s motion to vacate the judgment and decree for plaintiff, she appeals.

<p>Appeal from Circuit Court, Codington Count)'. Hon. William N. 'Skinner, Judge.</p> <p>Action by A. H. Cornwell, as administrator of the Estate of Elenry S. Rowe, deceased, against the Surety Fund Life Company, a corporation, and another, to recover a portion of a life insurance fund. From an order sustaining á demurrer to the complaint, plaintiff appeals.</p> <p>(3) To point three of the opinion, Respondent cited, re right of beneficiary as vested right where insured- has not consented to change of beneficiary; Fruend v. Fruend (111.) 109 Am. St. Rep. 283.</p> <p>(5) To point five, as supporting theory of insured’s fraudulent gift as against creditors: Tompkins v. Levy, 87 Ala. 263, 6 So. 346, 13 Am. St. Rep. 31; 20 Cyc. 363. To point that the “gift” is the gift of the insurance policy; 25 Am. Law. Review, 185; Lehman v. Gunn (Ala.) 27 So. 475, 82 Am. S't. Rep. 159, 51 L. R. A. 112.</p> <p>Respondent cited: Central Nat. Bank of Washington City v. Hume, 128 U. -S. 195, 32 L. ed. 370; 25 Cyc. 900.</p>

Hon. Louis L- Fleecer, Judge. Action by A. H. Sharpe, against FI. A. Shoenberger, upon a promissory note. From a judgment for plaintiff,' and from an order denying a new trial, defendant appeals. (1) To point one of the opinion, Appellant cited: Code 1919, Sec. 1705; Davis v. Brady, 17 S. D. 51.1. Respondent cited: Merrill v. Hurley, 6 S. D. 592. (2) To point two, Appellant cited: Johnson v. Schar, 9 S. D. 536; Bank v. Basuier, 12 C. C. A. 517, 65 Fed. 58; First Nat.

Hon. Louis L. PijiEGijR, Judge. A’ction by L. D. Miller, against the Sioux Falls Traction System, to recover damages for injury to plaintiff and his automobile resulting from collision with defendant’s street car. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Appellant cited: Johnson v. Washington Water Power Co. (Wash.) 132 Pac. 392; Underwood v. Oskaloosa Traction Go.

<p>Appeal from Circuit Court, Yankton County. Hon. Robert B. Tripp, Judge.</p> <p>Action by Israel Johnson, against Roy German. From an order vacating a judgment entered on default, plaintiff appeals.</p>

Hon. Raymond L. Diulman, Acting Judge. In the Matter of the Contest of the last Will and Testament of Carrie Jacobson, also known as Carrie Viken, deceased, Carl J. Mohn, Executor of the will, petitioned in the county court for probate thereof, Anna Chapin, devisee .and legatee thereunder, joining with petitioner as proponents thereof; John Viken, Carrie Viken, Anna Jorgenson, Iver Viken, Ole Smestad, Rose 'Smestad, Alfred Smestad, Benjamin Smestad, Lena Smestad, Oscar…

Hon. James McNenny, Judge. Action by the First National Bank of North Yakima, Washington, a corporation, against the Black Hills Trust & Savings Bank, a corporation, to recover upon a draft drawn through defendant bank by George T. Posey & Co., on the Black Hills Mercantile Company. From an order sustaining a demurrer to the complaint, plaintiff appeals.

<p>1. Appeals — Error—Findings, Insufficiency of Evidence — Other Findings TJnrequested, Questions Re Findings Made, Immaterial.</p> <p>There being no record of any request for findings below, or any error assigned because of failure to make findings on matters not covered by those made, question as to what court might have found is immaterial on appeal.</p> <p>2. Contracts — Rescission of Realty Exchange, For Fraud — Failure to Fully Execute Fair Contract, Non-evidence of Fraud.</p> <p>In a suit seeking rescission of an exchange of realty, on ground of fraud, held, there was no evidence to support such charge-; the fact that respondent had not fully carried out terms of a fair contract being no evidence of fraud. So held, where respondent was to pay appellant $4500 as difference in values of the lands exchanged, taking appellant’s land subject to $20,000 incumbrance, the .cash difference to be applied in part to pay all excess of $20,000 against appellant’s land, nearly half of which payment was so applied.</p> <p>3. Same — Right to Withhold Fart of Cash Difference to Cover Contingent Cloud on Title.</p> <p>The fact that trial court found against the charge of fraud and in respondent’s favor justified him in withholding a balance of the $4500 cash difference, in view of the fact that title to the land received by him was clouded by two lis pendens, there being alleged liens against the land in a sum exceeding said balance; this notwithstanding it appeared on but not before trial that judgment on one of the lis pendens had 'been paid, since an open question still existed as to whether judgment in the other action was a lien on the land.</p>

Hon. Frank Anderson, Judge. Action by McCaul-Dinsmore Company, a corporation, against Harry G. Heyler, to recover damages for breach of an alleged contract of sale of baled hay on plaintiff’s orders. From a judgment for defendant or directed verdict, and from an order denying a new trial, plaintiff appeals. (x) To point one of • the opinion, Appellant cited: McIntyre Lumber 'Co. v. Jackson Lumber Co. (Ala.) 138 A. S. R. 66.

Hon. Robert B. Tripp, Judge. Action by Dennis Murphy, against the Sioux Falls Serum Company, a corporation, to recover damages resulting from the alleged killing of plaintiff’s hogs by vaccination by serum and virus manufactured 'by defendant. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.

Hon. M. N. Burcti, Judge. Action by Harold A.. Oldham and another, against Georg'e W. Egan and others, to 'enforce specific performance of a contract for sale of realty, and for other relief. From an order overruling a demurrer to the complaint, defendants appeal. Appellant cited, to insufficiency of complaint: 20 Encyc. of PI. & Pr., 451; Leisch v. Baer, 24 S. D. 184; Morgan v. Bell, 28 Pac. 925; Williams v. Mansell, 19 Fla. 546.

Hon. N. D. Burch, Judge. Action by Harold A. Oldham and another, against Eugene Reiley, George W. Egan, and another, to enforce specific performance of a contract for sale of realty, and for other relief. From an order denying defendants’ motion for change of venue, they appeal.

Original proceeding upon certiorari by the City of Mitchell, a municipal corporation, against the Board of Railway Commissioners ; and by the City of Huron, a municipal corporation, against said Board', in the matter of the application of Dakota Telephone Company to continue in effect, after expiration of federal control, the telephone exchange rental rates authorized 'by the Postmaster General; ‘Dakota Central Telephone 'Company, Respondent; praying an adjudication as to…

. Hon. Alva E. Taylor, Judge. Action by N. E. Mundon, against A. G. Greenameyer and Joe Marso, to recover damages for alleged breach of warranty under a contract of sale of livestock 'by defendants to him. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

The defendants John' Kenstler, Fritz Kenstler, and Arthur Kenstler were convicted of the crime of assault with a dangerous weapon with intent to do great bodily harm and without justifiable or excusable cause, and they appeal. (i) To point one of the opinion, Appellants cited: Wharton’s 'Grim. Ev- Vol. i, ioth ed., page 988, 1004; Jones on Ev. 2nd ed. Sec. 828; State v. Mulch, 17 S. D. 323; Wigmore on Ev.' Vol. 2, Sec. 943, 1368; State v. Malberg (N. D.) 105 N. W. 614.

Hon. Jambs McNenny, Judge. Action by Chester M. Mills, against the Dakota Power Company, a corporation, to recover damages to plaintiff’s auto resulting from a collision with a truck by reason of the alleged negligence of defendant’s driver. From a judgment for plaintiff, and from1 an order denying a new trial, defendant appeals. (1) To point one of the opinion, Respondent cited: Foote v. Am. Products Co. 49 D. R. A. 764; Schnabel v. Kafer, 39 S. D. 70, 162 N. W. 935.

<p>Appeal from Circuit Court, Roberts County Hon. Frank Anderson, Judge.;</p> <p>Action by Iver Hanson, against H. G. Harris, to recover damages for alleged malpractice. • From a judgment for plaintiff, and from an order denying a new trial, defendant appeals.</p> <p>(2) To point two of the opinion, Appellant cited: Dean v. Seeman, 176 X. W. 649; Staloch v. Holms 100 Minn. 276, m X. W. 264.</p>

Hon. Frank Andsrson, Judge. Action by Britton Milling Company, a corporation, against H. J. Williams, to recover upon a promissory note. From a judgment for defendant on directed verdict, and from an order denying a new trial, plaintiff appeals. (i) To point one of the opinion, Appellant cited; Sawyer v. Prickett, 19 Wall. 146, 86 U. S'. 146, 22 L. ed. 105; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158.

Hon Lo-uis L. FrbBgér, Judge. Action by Florence Sheffield, against the Modern Woodmen of America, (M'aggie Gillette and others intervening as heirs of decedent.) to recover upon a policy of mutual benefit life insurance. From a judgment for plaintiff, and from an order denying a new trial, defendants interveners appeal.

<p>Appeal from Circuit Court, Charles Mix Count}’. Hon. Robert B. Tripp, Judge.</p> <p>Action by Mary Frederick, against the Rock Island Savings Bank, a corporation, 'Harriet M. Hurst, as executor of the last will and testament of Elmore W. Hurst, deceased; Julia Stafford and others, as heirs and the unknown heirs of Charles Wahaihay, or Hetunyuhana or 'Charles 'Wahehe or Snow, deceased; the unknown heirs of Emma Wahayhay or Wakesakewin or Emma AYahehe or Snow, deceased, the unknown heirs of 'Isan or Isan Wahehe or Snow, deceased; and the unknown heirs of Mazaskawin or Silver Woman, deceased, to determine ownership of an interest in sundry tracts of land. From a judgment for defendants, and from- an order denying a new trial, plaintiff appeals.</p> <p>Appellant cited: Act of Cong, of August 15, 1894: 31 Stat. 760; Act of Cong, of March 3, 1911: 36 Stat. 231; Sloan v. United States, 118 -Fed. 283; Judicial Code (Approved March 3, 1911,) 36 Stat. 231, 'Sec. 24, par. 24; Egan v. McDonald, 36 S. D. 92; Tripp v. Sieler, (S. D.) 161 N. W. 337.</p> <p>Respondents cited: Little Bill v. Swanson, (Wash.) 117 Pac. 481; Marquez v. Frisbie, 101 U. S. 473, 25 L. ed. 800.</p>

Hon. James McNenny, Judge. Action by James McDowell, against William -R. Jameson and Cutting Mining Company, a corporation, Impleaded with Deadwood Gulch Mining Company, a corporation, to foreclose a mortgage and to determine adverse claims of title to the mortgaged realty.

Hon. Louis L. FreegER, Judge. Action by M. Bestak, against J. B. Bennett, to recover $33 alleged to have been overpaid by plaintiff by mistake in settling a debt due defendant; defendant counterclaiming for $173. From a judgment for plaintiff in the municipal court of Sioux Falls, defendant appealed to the circuit court; from a judgment in which latter court for plaintiff, defendant appeals.

Hon.- Joseph H. Bottom, Judge. Action by Mary M. Schuler, against the City of Mobridge, a Municipal Corporation, to recover damages for alleged injury to plaintiff from a defective sidewalk in defendant city. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. (2) To point two, Appellant cited: Smith v. City of Yank-ton, 23 S. D. 358; Beltz v. City of Yonkers, 148 N. Y. 67. Respondent cited: Smith v. Yankton, supra.

Hón. Louis L. FuEEGER, Judge. Action by R. A. Rae, against A. J. Kuhns, praying for an injunction against defendant directing the removal of a certain dam or fill constructed by defendant across plaintiff’s drainage; defendant, in addition to defending, having counterclaimed and prayed an injunction against plaintiff’s maintenance of said drainage.

Hon. Louis L. LuEEGEr, Judge. In the Matter of the Will of James 'A. Gillette, deceased. Orrie Gillette, widow of decedent, contested the will in the county court, that court having admitted the will to probate; from which decree contestant appealed to circuit court; which latter court on trial to jury adjudged the will void; from which judgment and from an order denying a new trial, William J. McLaughlin, Executor under the will, appealed.

'Hon. Frank And-' Urson, Judge. Action by First National Bank of Egan, a corporation, against A. I .Tajdor, also known as Albert I. Taylor, and others; John Walkin, Intervener, as judgment creditors to have set aside certain- conveyances as fraudulent.- From a judgment for plaintiff and the intervener, ancl from an order denying a new trial, defendants appeal.

Hon. Jambs McNbnny, Judge. Action by the City of Lead, a Municipal Corporation, the City of Deadwood, a Municipal Corporation, William E. Adams and E. A. Steinback, residents and gas consumers in said cities respectively, against the Western Gas & Fuel Company, a corporation, to restrain defendant from ceasing the operation of its gas plant. From an order refusing to vacate an order appointing a temporary receiver to operate defendant’s gas plant, defendant appeals.

The defendant, Jacob Fritz, was convicted of the crime of statutory rape, and he appeals. (1) To point one of the opinion, Appellant cited: I Encyc. of Ev. 735. Respondent cited: 33 Cyc. 1473, and cases cited. (2) To point two, respondent cited: Commonwealth v. Cleary (Mass.) 51 N. E. 746; Wharton’s Crim. Law, Vol. 1, p. 9*7-

Hon. Walter G. Misc., Judge. The defendant, Charles Doll, was convicted of the crime of manslaughter in the second degree, and he appeals from judgment thereon and from sentence to penitentiary imprisonment and the imposition of a finé. Appellant cited: 'U. S. v. Santisevan, i N. M. 583.

Hon. Robert B. Tripp, Judge. Action by Henry Rehder, against Theodore Hansen and Harold. Hansen, to recover damages for injuries alleged to have resulted from defendants’ negligence in “cutting in” with an automobile ahead of a car in which plaintiff was riding. From a judgment for defendants, and from an order denying a new trial, plaintiff appeals.

Hon. Frank Anderson, Judge. Action by Britton Milling Company, a corporation, against E. G. Williams, to recover upon a promissory note. From a judgment for Defendant, and from an order denying a new trial, Plaintiff appeals.

Hon. Louis L. Fuurger, Judge. Action by Ed. Schmidt, against L. D. Potter and W. M. Hause, as Individuals, and as Co-partners under the firm name and style of Potter & Hause, to recover (as to one cause of action) damages and conversion of personalty, and (as to the second cause of action) for damages for forcible ejectment, (two cases having been consolidated and tried as one.) Verdict and judgment having- been for plaintiff, he appeals from an order granting a new trial.

<p>Appeal from Circuit Court, Brown County. Hon. Frank Anderson, Judge.</p> <p>Action by David Holleman, against A. M. Tajdor, to enforce specific performance of re-sale of land to plaintiff’s vendor. From a judgment dismissing the action, and from an order denying a new trial, plaintiff appeals.</p>

Hon. William N. Skinner, Judge. Action by Sarah E. Youngberg, against Oscar A. Youngberg, for a decree of divorce. From a decree in plaintiff’s favor, but refusing to assign her entire homestead and decreeing her $2500 out of proceeds of sale thereof, she appeals. (2) To point two of the opinion, Counsel amici 'curiae cited: Brady v. Krueger, 8 S. D. 464, 66 N. W. 1083, 59 Am. St. Rep. 774.

Action by William N. Kayser, against Harvey Nelson, to recover damages for alleged alienation of plaintiff’s wife’s affections. From an order refusing to change the venue upon defendant’s motion, he appeals. (2) To point two of the opinion, Appellant cited: Lawyers Reports Annotated, 1916E, page 1090; Chap. 7, Art. 1, Part 9 of Title 2, Code 1919; Secs, xoo, 795, 'Code 1919. Respondent cited: Carrol v. Rye Township (N. D.) 101 -N. W. 894; McMurtry v. Kentuncy Cent.

Hon. John T. Mrdin, Judge. Action by Thomas Wangsness, as Administrator of the Es-state of Sigfred Ulvig, Deceased, against A. H. Stephenson, for enforcement of specific performance of a 'contract for sale of realty, or for alternative relief in damages for breach of the contract. From a judgment fot plaintiff, and from an order denying a new trial, defendant appeals.

Hon. Frank Anderson, Judge. Action by D. C. Nichols, and others, against R. D. Nordness, upon an alleged contract of guaranty of payment of $10,000 of certain notes held by a bank whose entire capital stock together with all notes held by the bank, was sold by defendant to plaintiffs. From an order overruling a demurrer to the complaint, defendant appeals. (1) To point one of the opinion, Respondents -cited: Sec. 2308, Code 1919; McLaughlin v. First National Bank, 6 Dak. 406.

Smith, Judge. Action by William Ontjes, against G. J. Thomas. From a judgment for defendant, from an order refusing to vacate the judgment, from an order denying plaintiff’s motion to serve and file a proposed amended complaint, and from an order denying new trial, plaintiff appeals. On motion to dismiss appeal.

Hon. Frank Anderson, J udge. The defendant Jonah Goodstar was convicted of the crime of statutory rape. From an order granting a new trial, the state appeals. Appellant cited: Jones on Ev., Sec. 508; 22 C. J. 801; Secs. 2725, 2726, Code 1919; Yankton-Clay County Drainage Ditch v. Aaseth. (S. D.) 137 N. W. 608. Respondent cited: State v. Flagstad, 126 N. W. 5S5; Heyler v. Faulkner, 153 U. 'S. 107, 38 L. ed. 653; 1 Greenl. Ev. 483; People v. Mayne, 50 Fac. 654.

Hon. Robert B. Tripp, Judge. Action by Peter Petranek, against the Bohemian Farmers’ Mutual Insurance Company, a corporation, to recover upon a policy of fire insurance. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals.

Hon. William N. Skinner, Judge. Action by John 'Scanlan, against Tollef H. Holm, to determine adverse claims to realty. From a judgment for Defendant and' from an order denying a new trial, Plaintiff appeals. Appellant' cited: Dunn v. Zwilling, 94 Iowa, 233, 62 N. W. 746. Respondent cited: McElroy'v. Allfree, 131 Iowa, 112, 117 A. S. R. 412. ....

Hon. Louis L. FeeEGEr, Judge. Action b)'- Oluf Hegge, as Administrator of the Estate of Sivert O. Hegge, deceased, and Karen O. Hegge, against Alfred &. Hegge and Nettie Hegge, to enforce forfeiture under certain contracts between plaintiff administrator’s decedent and 'defendant Alfred S. Hegge, for reinvestment of title to decedent’s homestead in his administrator and decedent’s wife as co-plaintiff, and for other relief.

Hon. Frank-Anderson, Judge. Action by Michael Devandowski, against Jacob Levandowski, to enforce specific performance of an oral contract to convey realty. From a judgment for Plaintiff, and from an order denying a new trial, 'Defendant appeals.

Original proceeding 'by the iS-tate of -South Dakota, on the relation of Byron S. Payne, Attorney General, against Jay Reeves as State Auditor of the State of South Dakota, to restrain and prohibit… Held: cited: Chap. 73, Laws 1890; Sec. 5132, Code 1919. All Interveners save the Supreme and Circuit Court judges, cited: Burns v. Board of County Commissioners, 39 S. D. 426; Laws 1911, Chap. 239; Laws 1917, Chap. 365; State v. Hackman, 276 Mo. 507.

<p>1. Constitutional Law — Attorney General, Common Law Duties of, Professional Capacity Re, Statute as Defining — Duties Confined to Law Matters.</p> <p>The duties of the Attorney 'General at common law, as defined by Sec. 5364, Code 1919, and as universally understood, are such as he may render the state in his professional capacity; and said section, wherein it requires him to appear for, prosecute and defend actions, etc , in which the state or any department thereof shall be a party or interested, to prosecute at request of the Governor, etc., official bonds and. contracts in which the state is interested, to consult with, etc., and supervise the several state’s attorneys concerning their official duties, to mail copies of certain opinions rendered by him to Executive Accountant, State’s Attorneys and County Auditors, to give opinions upon request to Legislature and certain state officers therein specified, to prepare contracts, etc., for use of state on request of certain specified officers, to report to Legislature on any business relating to his official duties, and to prosecute state officers neglecting, etc., to pay into state treasury public funds and under Const., Art. 4, •Sec. 13, providing that his powers and duties shall be as prescribed by law, render him a constitutional officer, and his duties, independent of the statute, are those of a law officer; and said section 5364, in so specifying his duties, recognizes the fact that the scope of his duties does not extend beyond law matters.</p> <p>3. Same — Attorney General as Member of Securities Commission, Duties of Distinguished From Those of Attorney General— Duties are Administrative — Statute,</p> <p>Under Sec. 10127, Code 1919, as amended by Sec. 1, Chap. 82, Laws of Second Special Session of 1920, providing that the Securities Commission theretofore created to administer and provided for enforcement of provisions of said chapter, shall continue to consist of Superintendent of Banks, who shall be president thereof, the Attorney Genral, the Rural Credit Commissioner, and one other member to be appointed by Governor, etc., and which Commission is empowered and directed by other sections therein to examine all statements and documents filed in its office by investment companies, etc., to conduct examinations and determine character of stocks, bonds and security contracts and plans of business of such companies, and upon approval thereof to permit sale of stock or other securities, imposes upon the Attorney General as a member of said Commission the duties and responsibilities borne by the other members; and they are not duties connected, with the office of Attorney General, • but are administrative in character and wholly foreign thereto.</p> <p>3. Constitutional Law — Constitutional State Officers, Imposing Separate Duties Upon, With Additional Salary, Legislative Power Re — State v. Roddle, Followed.</p> <p>It is within province of Legislature to impose upon a constitutional officer duties separate and distinct from those of his office, and to provide compensation therefor in addition to his salary as such constitutional officer. State v. Roddle, 12 S. D. 438, approved and followed. Burns v. Board of Co. Comrs., 39 S. D. 426, distinguished.</p> <p>4. Same — State Officers, Fees and Salaries of — Retaining Emolument, Fee or Perquisite for Official Duties, Statute Forbidding, Subsequent Statute Controlling — Legal Problems of Commission as Non-affecting Commission’s Duties.</p> <p>Chap. 127,"Laws 1901 (now Sec. 6965, Code 1919), making it unlawful for any officer receiving a state salary to keep or retain any money, emolument,' fee or perquisite, paid to or received by him for performance of official duty; “or in any manner paid to him as such officer, or by reason of his holding such office,” and declaring it the true intent and meaning of said section “that no officer receiving a salary from the state keep or retain any money, emolument, fee or perquisite, paid to him by reason of his holding such office, other than the annual salary payable to such officer as provided by the Constitution,” is not controlling in the instant case; since Sec. 1, Chap.'82, Laws Special Session 1921, being the later legislative enactment, supersedes said Chap. 127 and said Sec. 6965; and moreover, the existing statute (Sec. 10127, Code 1919, as amended by Sec. 1, said Chap. 82) prescribe for the Attorney General duties as a member of the Securities Commission not within the scope of his constitutional office as Attorney General, and which laws provide a compensation for their discharge; nor does the fact that said Commission may have legal problems to solve and may require legal advice, affect the general character of its executive duties.</p> <p>5. Same — Salary of Attorney General as Member of Securities Commission, Not Additional Compensation Re Constitutional Office, and Non-conflicting With Constitution.</p> <p>Under said statutes concerning the Securities Commission, the duties of its members are foreign to those of Attorney General, and not germane to his office; and said act awarding him compensation does not award additional compensation for any duty connected with' liis constitutional office as Attorney General, and is not in conflict with Const., Art. 21, Sec. 2, providing that such officer shall receive an annual salary of $1000, and that certain state officers, including him “shall receive no fee or perquisites whatever for the performance of any duties connected with his office;” and is not in conflict with Art. 4, See. 13, providing that the powers and duties of the Attorney General shall be as prescribed by law; that the Court is not at liberty to extend limitations found in said Sec. 2, to duties not connected with this office. • ■,.</p> <p>6. Same — Attorney General’s Duties Under Original Statute, Subsequent Growth, Importance, of His Duties, Judicial Cognizance Of — Inadequacy of Salary, Court’s Powerlessness Re.</p> <p>It is- a recognized fact, of which judicial cognizance may be taken,'-that ■ when in 1889 the office of Attorney General was creatéd and the compensation fixed at $1000 per annum there were few duties to be performed; that now with growth and" importance of public business exclusive services of an officer of highest skill and ability are demanded. And while his compensation is so grossly inadequate that he may be said to serve the state rather from sense of public duty than-for pay,-'courts are powerless to correct the situation. ! "</p> <p>Rice, J., dissenting.</p> <p>PART H.</p> <p>1. Constitutional Daw — Fees and Salaries — Superintendent of Public Instruction, Salary of as Executive Officer of State Board of Education, Whether an Increase of Constitutional Salary-Statutes, Constitution, Construed.</p> <p>Laws 1917, Sec. 227, being an 'Act to accept the benefits of an Act of Congress to provide for promotion of vocational education and to establish a State Board of Education for that purpose, formally accepted the provisions of the Federal Act, and (Sec. 2) created such Board of Education “to consist of the Superintendent of Public Instruction, the President of the University of South Dakota, the President of the State -College of Agriculture and Mechanic Arts and four persons appointed by the Governor two of whom shall be members of the faculty of a State Normal School, one a superintendent or principal of a city or town school and one a county superintendent,” and providing that the appointive members thereof shall hold office for four years, that (Sec. 3) such Board shall hold meetings at the Capital in July and January, etc., and defining the duties of- the Superintendent of Public Instruction, who “shall be ex-officio president of the Board and shall furnish all necessary record books and blanks for its use,” and that members of said State Board of Education shall receive no salary for their services thereon, but that they shall be reimbursed for actual expenses incurred in performance of their duties; said chapter appearing as Secs. 7406 to 7410, inclusive, Code 1919. Sec. 7409 as amended by 'Chap-. 184, Laws 1919, further defined duties of said Board, and further provided that said Board, “shall have authority to appoint upon the recommendation of the Superintendent of Public Instruction such officers and assistants as he may deem neicessary to properly' administer the Federal Act and this Act * * and that said Board shall authorize the Superintendent Of Public Instruction to certify to State Auditor the amount appropriated as State and Federal Aid to each school approved under the provisions of the present Act. Secs. 7409 and 7410 were further amended by Laws 1921, Chap. 215, and .provided that the executive officer of the State Board of Education shall receive a salary of $600 a year. Held, that said Chap. 215 is not in contravention of Const., Art. 21, Sec. 2, providing that the Superintendent of Public Instruction shall receive an annual salary of $1800 and that he shall receive no fees or perquisites for performance of any duties connected with his office, and that it shall not be competent for the Legislature to increase the salary of the officers therein named including the Superintendent of. Public Instruction; nor of Art. 12, Sec. 3, providing that the compensation of any public officer shall not be increased or diminished during the term of office. The question involved is: Was thé Superintendent of Public Instruction when acting as executive officer of the State Board of Education acting as Superintendent of Public Instruction and discharging the duties imposed upon him as such officer? and held, further, that the Legislature in plain terms has required him as Superintendent of Public Instruction to act as such executive officer; this in view of said legislative provision, and of Const., Art. 4, Sec. 13, providing that the powers and duties of the Superintendent of of Public Instruction shall be as prescribed by law.</p> <p>2, Same — State Board of Education, Whether Creation of Created New Office, Immateriality of Question — Legislative Power Defined — Non-germane Duties Not Required.</p> <p>As to whether the Legislature, in enacting said statutes, created a new office when it created the State Board of Education, is unimportant; the Legislature having full power to define and fix the duties of the Superintendent of Public Instruction, with an implied inhibition against requiring him to perform duties not germane to his office; and if the duties so imposed pertain to and are in furtherance of public education and instruction they are germane to his office, and he as Superintendent of Public Instruction is impliedly obligated to give the state the beenfit of his services in discharge of the duties imposed.</p> <p>3. Public Instruction — Legislative Discretion Re Classes Of — Vocational Education, Instruction Re, Legislative Power Re — Payment for Services, Source Of, Immateriality — Evasion of Constitution, How Impliedly Evaded.</p> <p>The kinds or classes of public instruction the state will provide rests wholly with Legislature; and if it deems it advisable that state shall give instruction as to vocational occupations, it has power to do so and may require from Superintendent of Public Instruction his assistance or superintendence; it is no concern of his as to source from which funds for carrying on vocational education are derived; and so long as such instruction is provided for the public benefit it is public instruction and germane to duties of Superintendent of Public Instruction; that if by device of creating a 'Commission and making constitutional officer a member thereof and imposing upon the Commission duties germane to the constitutional officer, Legislature can provide a salary in addition to that provided by Constitution, it could take each part of statute defining his duties, create a Commission, make him an ex-officio officer thereof, give the office a new title, pay him a salary, and thus annul the constitutional ¡provision herein involved.</p> <p>■i. Constitutional Law — Grant of Power, What Carried by Implication — Increase of Salary, Prohibition Against, What Implications Involved' — Consent of Constitutional Provision, Nonjudicial Question.</p> <p>It is a fundamental principle of law that granting of a power carries with it by implication the right to do everything necessary to exercise of the power granted, and a prohibition carries with it implications as broad as those going with granting of power; and Const., Art. 21, Sec. 2, providing that Superintendent of Public Instruction shall receive an annual salary of $1800 and that he shall receive no fees or perquisites whatever for performance of any duties connected with his office, and that it shall not be competent for Legislature to increase the salary of said and other officers, by implication prohibits Legislature from doing so. Held, further, that the wisdom of the constitutional provision involved, and the adequacy or otherwise of the salary, are not before the Court.</p>

Original proceeding- by A. Christopherson, against Jay Reeves, as Auditor of the State of South Dakota, for a peremptory writ of rqandamus commanding him to issue a warrant on the State Treasurer in favor of Plaintiff for reimbursement for alleged expenses incurred as a member of the State Legislature; the State of South Dakota intervening.