Everitt v. Board County Com’rs

• Citation: 1 S.D. 365,47 N.W. 296
• Parties: THORNTON S. EVERITT, Petitioner, v. BOARD COUNTY COMMISSIONERS, HUGHES COUNTY, S.D. and C. N. Hawley, County Auditor, Defendants.
• Decision Date: 03 December 1890
• Court: Supreme Court of South Dakota

1 S.D. 365

47 N.W. 296

THORNTON S. EVERITT, Petitioner,

v.

BOARD COUNTY COMMISSIONERS, HUGHES COUNTY, S.D. and C. N. Hawley, County Auditor, Defendants. South Dakota Supreme Court Original Proceedings Application for writ of certiorari—Denied A. W. Burtt, H. S. Mouser, A. B. Melville L. W. Crofoot, Aberdeen, SD Attorneys for petitioner. Loring E. Gaffy Crawford & DeLand, Pierre, SD H. B. Horner Attorneys for defendants. Argued Oct. 7, 1890. Opinion filed Dec. 3, 1890.

CORSON, P. J.

Application was made to this court on the 26th day of September, 1890, for a writ of certiorari to the board of county commissioners of Hughes county and C. N. Hawley, county auditor, commanding them to certify to this court a transcript of the record of the proceedings of said board of county commissioners, relating to the establishment of certain election precincts in the unorganized counties of Nowlin and Sterling, and the appointment of judges and clerks of election therein by said board. The application was made upon the affidavit of Thornton S. Everitt, petitioner, who sets forth in his affidavit, briefly stated, that he is a party beneficially interested, is a tax payer of said Hughes county, and a resident of the State of South Dakota, and that by reason of the acts of said board in establishing election precincts in said unorganized counties of Nowlin and Sterling, and the appointment of judges and clerks of election therein,—all which acts he sets out in full, and alleges that they are illegal and void,—expenses will be incurred for such judges and clerks of election, furnishing ballot boxes, printing, etc., that will impose on him additional burdens as a tax payer of said Hughes county. He further states that the reasons why application was not made to the circuit court, or judge of the court having jurisdiction, are that “there is no circuit court in session in said Hughes county, and that there will be no term of said court in said county until after election, and that the supreme court has full jurisdiction of the matter.” Upon the filing of said petition, an order to show cause why said writ should not issue as prayed for was granted by this court, returnable on the 2d day of October, 1890, on which day the parties appeared by their respective counsel. The counsel for the board of county commissioners and said C. N. Hawley, auditor, moved the court to dismiss the order to show cause and deny the writ on several grounds, only two of which do we deem it necessary to consider at this time, and these are: First, that no sufficient grounds are stated in the affidavit for calling into exercise the original jurisdiction of this court; and, second, that no sufficient reasons are shown why the application was not made to the circuit court or judge having jurisdiction. The disposition of this application and motion necessarily involves a construction of the sections of our constitution conferring jurisdiction upon the supreme court. Sections 2 and 3 of Article 5 define and prescribe the jurisdiction of the supreme court, and are as follows;

“Sec. 2. The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be co extensive with the state, and shall have a general superintending control over all inferior courts under such regulations and limitations as may be prescribed by law.

“Sec. 3. The supreme court and the judges thereof shall have power to issue writs of habeas corpus. The supreme court shall also have power to issue writs of mandamus quo warranto, certiorari, injunction, and other original and remedial writs, with authority to hear and determine the same in such cases, and under such regulations, as may be prescribed by law, provided, however, that no jury trials shall be allowed in said supreme court; but, in proper cases, questions of fact may be sent by said court to a circuit court for trial before a jury.”

Section 2, it will be seen, makes provision—First, for the appellate jurisdiction of this court; and, second, for its general superintending control over all inferior courts. This section clearly defines the primary jurisdiction of the supreme court, and points out specifically the power and authority it is primarily intended this court shall exercise.

This court being constituted as the highest court under our judicial system, it was exceedingly appropriate that. its jurisdiction should extend primarily to the review of all the proceedings and determinations of the inferior courts, and to the exercise of a superintending control over those courts. By other sections of the constitution, the framers of that instrument have conferred upon the inferior courts original jurisdiction over all controversies arising between private parties, and it was no doubt their intention to leave to such courts the disposition of all cases affecting purely local or private rights, subject to review by this court. Such jurisdiction was intended to be, and is, adequate, and affords ample facilities to litigants in all cases for the redress and protection of such purely private rights. We may assume, then, that the enforcement of these private and local rights—for the determination of which inferior courts have been provided, subject to the appellate jurisdiction of the supreme court—was not in the mind of the framers of the constitution when they adopted Section 3. But it was no doubt in the mind of that body that emergencies might arise where the protection of the prerogatives and franchises of the state in its sovereign character—the prevention of the usurpation of its offices, the protection of its legally ordained officers from intrusion and invasion, the protection of the liberty of the citizen, the preserving pure and unimpaired the various departments of the government, the determination of controversies in which the people of the state, or a large part of them, were directly interested, and the disposition of matters which for some special cause could not properly be brought before an inferior court—might require the intervention of the highest judicial tribunal of the...