GATES, J.
The defendant was convicted of the crime of embezzlement in the circuit court of Butte county, to which county the case was transferred upon defendant's application. From the judgment and order denying a new trial he has appealed to this court.
The information in this case was subscribed and filed May 13, 1913, in the circuit court of the Seventh judicial circuit within and for Pennington county by Frank D. Bangs, "Special State's Attorney of Pennington County, South Dakota, Acting under Order of Court," as informant, and was verified by him. Thereupon the defendant moved to quash the information for the reasons:
"(1) That said information is not indorsed and presented as prescribed by law, in that the said information was not filed by the state's attorney in and for Pennington county, S.D., as informant, nor has the state's attorney in and for said Pennington county subscribed his name thereto.
"(2) That Frank D. Bangs, purporting to act as special state's attorney for Pennington county, S.D., is and was without any authority so to act as such special state's attorney, and the order purporting to appoint said Frank D. Bangs as special state's attorney was made and entered without jurisdiction, without authority of law, and is null and void."
On December 10, 1912, the board of county commissioners of Pennington county petitioned Judge McGee, circuit judge, to appoint a special prosecutor for Pennington county to investigate, commence, and prosecute all civil and criminal actions that might arise out of the investigation of the county records of said county and recommended the appointment of Frank D. Bangs. The then state's attorney approved the petition, and on December 14, 1912, the court entered an order making the appointment accordingly. On that day the state's attorney resigned his office. On December 16, 1912, Patrick Egan, who had been elected state's attorney at the general election of 1912, qualified as state's attorney of said county pursuant to the provisions of chapter 75, Laws 1905, and at all times thereafter was the duly elected, qualified, and acting state's attorney of that county. On December 18, 1912, the court entered another similar order upon the same petition appointing the said Bangs to perform the duties of state's attorney of said county in connection with the same matters. On May 13, 1913, upon the same petition, and without any other showing or proof, and without any notice to Patrick Egan, the then state's attorney, and without any hearing to determine the disqualification of said state's attorney the trial court made the following order:
"The board of county commissioners of the above county, having on the 10th day of December, 1912, represented to this court that an investigation had been conducted with relation to the records of the offices of the county auditor and county treasurer of said county, covering several years prior thereto, and that the same had disclosed both civil and criminal liability on the part of certain former treasurers and auditors, and that the then state's attorney, Albert R. Denu, was disqualified to represent the county and state in proposed civil and criminal proceedings arising out of the disclosures of such investigation, and praying that a special prosecutor be appointed to investigate, commence and prosecute all civil and criminal actions that may in any manner arise out of or be connected with the investigation of such county records. And the said application and recommendation having been concurred in and approved by the said, Albert R. Denu, state's attorney, and he having joined in the petition for the appointment of a special prosecutor therefor; and this court being satisfied that the ends of justice would be promoted thereby, and having thereupon duly made its order entered in the minutes of said court, appointing one Frank D. Bangs, a suitable person and an attorney at law, of Rapid City, S.D., to perform for the time being, and in connection with all civil suits and criminal proceedings arising out of or connected with said investigation, the duties required by law to be performed by the said state's attorney. And it now appearing to the court that under and by virtue of such order of appointment, and a similar order subsequently entered, the said Bangs, as such acting state's attorney, caused to be instituted three criminal prosecutions against the defendant George E. Flavin, for the alleged crime of embezzlement, in the course of which the said Flavin was duly arrested upon warrant of arrest issued by A. W. Layman, justice of the peace within and for the above county, in one of which prosecutions the said Flavin was bound over to the present term of this court in $1,500 bonds, and in the other two of which he waived examination and was bound over to this court in $500 bonds each. And it appearing to the court that the said Frank D. Bangs, as such special state's attorney, conducted the said preliminary examination, and on behalf of the state has had full charge of the said proceedings as well as certain civil suits arising out of the alleged misappropriation and embezzlement of funds of the county of Pennington, which constitute the basis of such criminal proceedings; that the evidence on behalf of the state with relation to said criminal prosecutions is complicated and complex, and involves a multitude of details relating to various vouchers, records and documents alleged to have been raised, tampered with, or mutilated by the defendant during his incumbency of the office of county treasurer; that the said Frank D. Bangs, by reason of his being in charge of such proceedings up to the present time, and being also in charge of the said civil suits, is familiar with such evidence; but that the present state's attorney of Pennington county, S.D., has not in any way been connected with any of said proceedings, and is not familiar therewith. And the court being satisfied that the end's of justice would be promoted by the appointment of the said Frank D. Bangs as special state's attorney, to represent the state of South Dakota in the above-entitled, cause: Now therefore it is by the court ordered that the said Frank D. Bangs be and he is hereby appointed to perform, for the time being, and in connection with the above-entitled cause, the duties required by law to be performed by the state's attorney; to file an information or complaint with this court against the defendant in the above-entitled cause, upon the charge alleged, in the complaint before the justice of the peace, and to prosecute the same before this court, and to do all things, and take all steps and proceedings necessary in connection therewith, he being hereby clothed in the performance of such duties with all of the powers and rights of the state's attorney. And it is further ordered that this order be entered in the minutes of the court. Done in open court at Rapid City, S.D., this 15th day of May, 1913. By the Court: Levi McGee, Judge."
The motion to quash the information was denied; and such ruling is one of the many errors assigned upon this appeal.
In 1905 the Legislature passed chapter 90, amending section 934, Pol. Code, as follows:
"Sec. 934. The circuit court, whenever there shall be no state's attorney for the county, or when the state's attorney is absent or unable to attend to his duties, or is adversely interested or disqualified, or when in the opinion of the court the ends of justice would be promoted thereby, may appoint by an order, to be entered in the minutes of the court, some suitable person, an attorney at law, to perform for the time being the duties required by law to be performed by the state's attorney, and the person so appointed shall thereupon be vested with all the powers of such state's attorney for that purpose; and the circuit court shall by an order in the minutes of the court, fix his fees therefor, which amount shall be allowed by the county commissioners, and which amount when so ordered by the court shall be deducted from the salary of the state's attorney. Nothing in this section shall be so construed as to give the court the power to permanently fill vacancies in such office, but such power is vested in the board of county commissioners, as is elsewhere provided for in this Code."
Prior thereto and for a period antedating statehood, the court was vested with such power, when necessary, in case "there shall be no state's attorney for the county, or when the state's attorney is absent or unable to attend to his duties."
We are now called upon to determine whether the Legislature had authority to empower the circuit court to supplant the state's attorney merely because "in the opinion of the court the ends of justice would be promoted thereby" when the state's attorney was neither absent, nor unable to attend to his duties, nor adversely interested, nor disqualified.
Section 10 of article 6 of the Constitution provides:
"No person shall be held for a criminal offense unless on the presentment or indictment of a grand jury, or information of the public prosecutor, except in cases of impeachment, in cases cognizable by county courts, by justices of the peace, and in cases arising in the army and navy, or in the militia when in actual service in time of war or public danger: Provided, that the grand jury may be modified or abolished by law."
Section 5 of article 9 of the Constitution provides:
"In each organized county at...
