Application of Nelson, No. 10454

CourtSupreme Court of South Dakota
Writing for the CourtPER CURIAM; ROBERTS
Citation83 S.D. 611,163 N.W.2d 533
Docket NumberNo. 10454
Decision Date20 December 1968
PartiesApplication of Dayton NELSON and Carroll Nelson, Landowners, for a Writ of Prohibition against the South Dakota Electric Mediation Board, Plaintiffs and Respondents, and City of Miller, Intervener and Appellant, and Frank L. Farrar, as Attorney General of the State of South Dakota, Intervener.

Page 533

163 N.W.2d 533
83 S.D. 611
Application of Dayton NELSON and Carroll Nelson, Landowners,
for a Writ of Prohibition against the South Dakota
Electric Mediation Board, Plaintiffs and
Respondents,
and
City of Miller, Intervener and Appellant,
and
Frank L. Farrar, as Attorney General of the State of South
Dakota, Intervener.
No. 10454.
Supreme Court of South Dakota.
Dec. 20, 1968.

[83 S.D. 612] Heidepriem & Widmayer, Miller, for plaintiffs and respondents.

David E. Morrill, Sturgis, James I. Hare, Miller, for intervener and appellant.

PER CURIAM.

To settle disputes arising from competition between suppliers of electricity in certain areas the legislature passed Ch. 254, Laws of 1965. A brief outline of parts of the act will assist in indicating its plan. Section 12 creates the South Dakota Electric Mediation Board 'with quasi judicial powers for the sole purpose of determining which electrical supplier shall provide electric service in certain areas as herein provided.' Section 13 provides for six state members of the Board to be appointed by the governor: Two are from a list of three names submitted by the S.D. Municipal Electric Association known as Municipal members; two from a list submitted by the S.D. Electric Information Institute known as Investor Owned members and two from a list submitted by the S.D. Rural Electric Association known as Rural Electric members. Section 14 provides the person or supplier directly involved desiring to protest electric service, actual or contemplated in certain areas around municipalities, may

Page 534

file a petition for hearing with the senior circuit judge of the judicial circuit setting forth the dispute. Section 15 provides each of the electrical suppliers involved in the dispute shall certify to the circuit judge the name of a person to serve on the Board, known as local members. These two local members, the four state members representing the

[83 S.D. 613] 'two segments involved in the dispute (here the city and rural members) and the Circuit Judge, acting as the chairman and secretary, shall constitute the Mediation Board for the purpose of settling the dispute in question.'

It also directs the judge to fix a time and place for hearing and give notice to all members, persons and suppliers involved.

The City of Miller and Ree Electric Co-operative, herein called City and Ree, both in the electric distribution business in or adjacent to that City, became involved in a dispute as to which was to be the electrical supplier of consumers on a tract of land annexed by the City. The City filed a petition under Ch. 254, asking the senior circuit judge of the Ninth Judicial Circuit to assemble the Mediation Board created thereby to hear and settle the dispute. Each of them selected their local member and these two, with four statewide members--two representing the S.D. Municipal Electric Association and two representing the S.D. Rural Electric Association--met with the circuit judge for the hearing on the petition. In the meantime Dayton and Carroll Nelson, owners of the annexed land and consumers of electricity thereon, who had requested and contracted for service by Ree, filed an application for an alternative writ of prohibition against the Board as defendant. Nelsons asserted the unconstitutionality of Ch. 254. The City and Attorney General intervened. RCP 24. After a hearing, the trial court entered a judgment granting the writ enjoining the Board from determining the dispute between the City and Ree. This result followed the trial court's conclusion that the part of Ch. 254 which made the circuit judge a member of the Board of Mediation was unconstitutional in that it attempted to clothe a member of the judicial department of government with administrative duties properly exercised by the executive department. The City appealed.

In considering the question it is important to single out the question that is presented and those which are not. The authority of an administrative board to exercise legislative, executive or quasi judicial powers is not presented. The difficulty of sifting or cataloging these powers is mentioned by Professor Davis [83 S.D. 614] in § 1.09 of his Administrative Law Treatise. Nor is the function or authority of Boards of County Commissioners, Education or Public Utilities, or the review of their decisions by the courts here involved. Nor are we confronted with the authority of courts to enter the field of vacation of city plats (SDC 45.2808); excluding land therefrom (SDC 45.2903); formation of school districts (SDC 15.2505, now repealed) and other similar proceedings. This court has been in those difficult thickets before with varying results. We mention only a few in passing. Wickhem v. City of Alexandria, 23 S.D. 556, 122 N.W. 597; Codington County v. Board of Com'rs of Codington County, 51 S.D. 131, 212 N.W. 626; Brown v. Schenk, 54 S.D. 146, 222 N.W. 690; Dunker v. Brown County Board of Education, 80 S.D. 193, 121 N.W.2d 10, and cases cited therein. So have other courts. See In Re Richardson, infra. What was written in these fields may indicate doctrines and policies which affect our problem.

What is involved is the designation or appointment of a circuit judge to act as one member of a Board of Mediation of seven members to mediate, settle and determine a dispute between two corporations as to which is to provide future electrical service to the consumers of the territory involved. Prior to statehood this court's predecessor, the Territorial Court of Dakota, in Champion v. Board of County Commissioners, 5 Dak. 416, 41 N.W. 739, recognized

Page 535

the existence and some of the limitations of our form of government when it wrote:

'all the judicial power * * * is expressly conferred upon the courts * * * The legislature can create no other court; and can confer judicial power, Strictly such,--that which 'deprives of life, liberty, or property,'--upon no other tribunal. Quasi judicial powers involving judgment and discretion are often, and must necessarily be, exercised by administrative and executive bodies and officers. A Judicial power, as such, can be exercised only by the courts. The three great departments of the government are intended to be, and must be, separate and distinct. The legislature has no power to confer a strictly executive and administrative [83 S.D. 615] or legislative power upon the judiciary, and whenever it has sought to do so the courts have declared it void. * * * The courts hold, and must continue to hold, that they cannot and will not exercise other than...

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17 practice notes
  • Kneip v. Herseth, No. 11348
    • United States
    • Supreme Court of South Dakota
    • 9 Enero 1974
    ...appears, Payne v. Jones, 1924, 47 S.D. 488, 199 N.W. 472; State v. Reeves, 1921, 44 S.D. 568, 184 N.W. 993; Application of Nelson, 1968, 83 S.D. 611, 163 N.W.2d 533; In Re Hinesley, 1967, 82 S.D. 552, 150 N.W.2d 834, and will, if possible, construe a statute as to render it valid. Spangler ......
  • Wegleitner v. Sattler, No. 20211
    • United States
    • Supreme Court of South Dakota
    • 18 Febrero 1998
    ...three great departments of the government are intended to be, and must be, separate and distinct. (Citation omitted); accord In re Nelson, 83 S.D. 611, 614, 163 N.W.2d 533, 535 (S.D.1968) ("[A]ll the judicial power is expressly conferred upon the courts."). The function of this court is to ......
  • Heartland Consumers Power Dist., In re, No. 10718
    • United States
    • Supreme Court of South Dakota
    • 7 Octubre 1970
    ...the enactment of a statute rather than for grants of such power. This is not to say this power is unlimited. See Nelson v. City of Miller, 83 S.D. 611, 163 N.W.2d 533, and discussion in White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, where the court left undecided th......
  • Thom v. Barnett, 29546
    • United States
    • South Dakota Supreme Court
    • 24 Noviembre 2021
    ...without the invalidated section." Simpson v. Tobin, 367 N.W.2d 757, 768 (S.D. 1985) (citation omitted); see also Application of Nelson, 83 S.D. 611, 619, 163 N.W.2d 533, 537 (1968) ("The doctrine of separability requires the court to uphold any phase of the measure if the legislature would ......
  • Request a trial to view additional results
17 cases
  • Kneip v. Herseth, No. 11348
    • United States
    • Supreme Court of South Dakota
    • 9 Enero 1974
    ...appears, Payne v. Jones, 1924, 47 S.D. 488, 199 N.W. 472; State v. Reeves, 1921, 44 S.D. 568, 184 N.W. 993; Application of Nelson, 1968, 83 S.D. 611, 163 N.W.2d 533; In Re Hinesley, 1967, 82 S.D. 552, 150 N.W.2d 834, and will, if possible, construe a statute as to render it valid. Spangler ......
  • Wegleitner v. Sattler, No. 20211
    • United States
    • Supreme Court of South Dakota
    • 18 Febrero 1998
    ...three great departments of the government are intended to be, and must be, separate and distinct. (Citation omitted); accord In re Nelson, 83 S.D. 611, 614, 163 N.W.2d 533, 535 (S.D.1968) ("[A]ll the judicial power is expressly conferred upon the courts."). The function of this court is to ......
  • Heartland Consumers Power Dist., In re, No. 10718
    • United States
    • Supreme Court of South Dakota
    • 7 Octubre 1970
    ...the enactment of a statute rather than for grants of such power. This is not to say this power is unlimited. See Nelson v. City of Miller, 83 S.D. 611, 163 N.W.2d 533, and discussion in White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, where the court left undecided th......
  • Thom v. Barnett, 29546
    • United States
    • South Dakota Supreme Court
    • 24 Noviembre 2021
    ...without the invalidated section." Simpson v. Tobin, 367 N.W.2d 757, 768 (S.D. 1985) (citation omitted); see also Application of Nelson, 83 S.D. 611, 619, 163 N.W.2d 533, 537 (1968) ("The doctrine of separability requires the court to uphold any phase of the measure if the legislature would ......
  • Request a trial to view additional results

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