In re Nelson

• Decision Date: 19 March 1902
• Parties: In re NELSON.
• Court: South Dakota Supreme Court

19 S.D. 214

102 N.W. 885

In re NELSON.

Supreme Court of South Dakota.

March 19, 1902.

Original application of Olof Nelson for a writ of habeas corpus. Writ granted.G. P. Harben and Horner & Stewart, for relator. J. G. Bartine, State's Atty., and Preston & Hannett, for the State.

HANEY, P. J.

At a term of court appointed by the circuit judge, in Lyman county, begun on December 11, 1901, an indictment was returned charging the relator with having committed the crime of grand larceny in that county, to which he entered the plea of not guilty. Thereafter, on application of the state's attorney, supported by affidavits, and against the objection and protest of the relator, supported by affidavits, the place of trial was changed to Sanborn county on the ground that a fair and impartial trial could not be had in Lyman county; and the relator, then in the custody of the sheriff of Lyman county, was ordered into the custody of the sheriff of Sanborn county, to be by the latter retained until discharged by due process of law or released on bail. While the former sheriff was proceeding to execute this order the writ issued in this proceeding was served, in obedience to which he brought the relator into this court, together with his return, showing in detail the proceedings and orders of the circuit court by virtue of which the relator is restrained of his liberty. Upon the facts stated in the sheriff's return, it is contended that the relator is unlawfully restrained for the following reasons: (1) The circuit judge was without authority to order a special term of court; and (2) the circuit court was without authority to change the place of trial from the county in which the offense is alleged to have been committed, on the application of the state.

In discussing the first proposition, it will be assumed that, if the judge was without authority to appoint the term at which the indictment was returned, all proceedings based thereon are void. All territorial statutes, not repugnant to the state Constitution, in force when the state was organized, continued in force. Cutting v. Taylor, 3 S. D. 11, 51 N. W. 949, 15 L. R. A. 691. The state Legislature, at its first session, passed an act, which took effect February 6, 1890, wherein it was provided that all laws in force in the territory when the state was admitted, not repugnant to or inconsistent with the state Constitution, should continue and be in full force and effect until altered, amended, or repealed. Laws 1890, p. 254, c. 105. When the state was admitted, district judges were authorized to order special terms of court, even in counties where the time for holding regular terms was fixed by the Legislature. Myers v. Mitchell, 1 S. D. 249, 46 N. W. 245. Unless the statute conferring such authority conflicts with the state Constitution, or has been repealed since February 6, 1890, it is still in force. It reads as follows: “The judges of the circuit courts, respectively, shall have power whenever thereunto requested by the board of commissioners of the county wherein terms of court are regularly holden, or upon their own motion without such request, by an order to that effect, to appoint and hold terms of the circuit court in any county or subdivision; and such judges shall have power to adjourn courts from time to time as they shall deem expedient for the due administration of justice; and such terms shall in all respects be considered the same as the general terms provided in this act. The courts herein appointed shall continue as long as the business therein shall require. The terms of the circuit courts for subdivisions composed of a single county only shall be held at their respective county seats.” Comp. Laws 1887, § 426; Laws 1881, p. 111, c. 84, § 16. The Constitution contains these provisions: “The time of holding courts within said judicial circuits and counties shall be as provided by law; but at least one term of the circuit court shall be held annually in each organized county, and the Legislature shall make provision for attaching unorganized counties or territory to organized counties for judicial purposes. Special terms of said courts may be held under such regulations as may be provided by law. Until the Legislature shall provide by law for fixing the terms of courts, the judges of the supreme, circuit and county courts respectively shall fix the terms thereof.” Const. art. 5, §§ 27, 28, 33. If subsequent legislation was required to give effect to section 28, it became operative by reason of chapter 105, p. 254, Laws 1890, which in effect re-enacted the statute quoted; giving it the force of a law enacted by the state Legislature in the first instance. The contention that the Constitution does not execute section 28, “because it provides no regulations whatever for holding special terms,” is not tenable. There is no limitation of legislative power in section 28. It authorizes special terms, but requires that any regulations prescribed by law shall be observed in holding them. What such regulations shall be, rests alone in the discretion of the Legislature. It is provided that such terms may be held when ordered by the circuit judge, upon the request of county commissioners or upon his own motion. While it might be desirable to have the statute provide more adequate means of informing litigants and the general public of the time when special terms will be held, we do not apprehend that any substantial rights will be invaded by its operation. Such terms will not be of frequent occurrence. Instances where interested persons exercising ordinary diligence fail to receive notice will be rare, and in such cases the law will afford ample means of relief. Numerous terms of court were held by authority of this statute in territorial times, without its ever having been mooted, so far as we are aware, that any one was or could be thereby deprived of life, liberty, or property without due process of law. Unless held to have that effect, the statute does not conflict with any provision of the state Constitution. It cannot be seriously contended that it should be so regarded. To so regard it would be to annul a majority of the judgments rendered by the territorial district courts, and numerous adjudications since the state was admitted. The Constitution itself authorizes and requires terms of court to be held by order of the judges where terms have not been provided by law, without any provision as to what notice shall be given. Const. art. 5, § 33. In this respect the statute is not more defective than the Constitution. The law in question was not repealed by chapter 76, p. 174, Laws 1890. The distinction between terms fixed by the Legislature and terms ordered by the judges, or what may be designated as regular and special terms, is discernible in the history of our territorial and state legislation. It exists in the Constitution, and was recognized by this court in Myers v. Mitchell, supra. Chapter 76 relates to regular terms, and cannot be regarded as having repealed a statute relating to the subject of special terms. We therefore conclude that the circuit judge was authorized to order the term of court at which the relator was indicted.

There is another view, not alluded to in the argument of counsel, which leads to the same conclusion. Lyman county was organized in May, 1893. No action regarding terms of court therein was taken by the Legislature until 1901, when it was enacted that the circuit court shall annually hold a term therein on the third Tuesday in June. This act took effect July 1, 1901. Laws 1901, p. 128, c. 102 (Laws 1889, p. 5, c. 3). Hence no regular term has ever been held in that county, or can be held therein before June 17th in the present year. The Constitution itself required that at...