Warren v. Brown
| Decision Date | 31 December 1930 |
| Docket Number | 7176 |
| Citation | 234 N.W. 38,57 S.D. 528 |
| Parties | FREDERICK A. WARREN, Contestant, v. JAMES BROWN, Contestee. |
| Court | South Dakota Supreme Court |
JAMES BROWN, Contestee. South Dakota Supreme Court Original Proceeding #7176—Motion denied Danforth & Barron, Sioux Falls, SD Attorneys for Plaintiff. M. A. Brown, Chamberlain, SD O'Keeffe & Stephens, T. B. Thorson, Pierre, SD Attorneys for Defendant. Opinion filed Dec 31, 1930
At the general election held November 4, 1930, Frederick A. Warren and James Brown were candidates for the office of judge of the Supreme Court of the State of South Dakota from the Second Supreme Court District. On December 4, 1930, pursuant to section 7296, Rev. Code 1919, the state canvassing board as constituted by section 7295, Rev. Code 1919 (), canvassed the vote cast for said office () and determined and certified that James Brown received 64,300 votes for said office and that Frederick A. Warren received 64,217 votes for said office, giving to the said Brown a majority of 83 votes, whereupon a certificate of election was issued to the said Brown.
Within twenty days thereafter, and on or about December 11, 1930, the candidate Warren, as contestant, instituted the present proceeding as an original proceeding in this court against the candidate Brown as contestee, pursuant to the provisions of sections 7328 to 7335, inclusive, Rev. Code 1919, to contest said election. In addition to serving and filing notice of contest, pursuant to section 7328, Rev. Code 1919, the contestant, pursuant to section 7334, Rev. Code 1919, made application to this court for an order directing a recount of the ballots cast for said office in thirty-two counties of the state, and served notice upon the contestee that he would make application to this court on December 18, 1930, for an order directing such recount. At the time fixed in said notice of application contestant and contestee appeared before this court by their respective counsel, whereupon before any other or further proceedings were had, the contestee challenged the jurisdiction of this court by motion to quash the entire proceeding, which motion was in the following language:
“Comes now James Brown, contestee above named, and upon all of the files, records, pleadings and moving papers herein, moves the above named court to strike the above entitled proceedings from its files and records and to quash the same for the reason that the court is without jurisdiction to entertain or hear such a proceeding, as the purported statutes, viz., sections 7328 to 7335 inclusive, the Revised Code of 1919 of South Dakota, under which said proceeding is apparently brought, are repugnant to sections 2 and 3 of article 5 of the Constitution of the State of South Dakota, and are wholly ineffective and void.”
Counsel were heard in oral argument upon the jurisdictional question thus raised, and briefs were filed therein by respective counsel, and the matter taken under advisement by the court, and it is that jurisdictional question that is now before us for disposition upon the motion to quash.
Our statutes regarding election contests seem to be tripartite in nature and origin. By sections 7348 to 7364, Rev. Code 1919, procedure is outlined for instituting contest, taking testimony for subsequent presentation to the Legislature, etc., in cases where it is desired to contest the election of a member of the Legislature. This portion of our present statutes appears to have had its origin with the first Territorial Code Commission as chapter 47 of the Revised Political Code of 1877.
Sections 7336 to 7347, inclusive, Rev. Code 1919, provide a procedure in the circuit court for contesting election to county office, etc., which proceedings by virtue of section 6326, Rev. Code 1919, have application in municipal matters. This law also appears to have its origin in territorial days as chapter 54, Laws Dakota 1885. Its structure has been carried forward without substantial change, and it has been many times availed of.
Sections 7328 to 7335, inclusive, Rev. Code 1919, establish a procedure for contesting election to state office by an original proceeding in this court, and those are the sections under which contestant inaugurated and seeks to continue the present proceeding, and the sections whose constitutional validity is challenged by contestee’s motion. For convenience said sections 7328 to 7335, inclusive, will be hereinafter in this opinion referred to as “the contest statute.”
This procedure for contesting state office was not established until some ten years after statehood, having its origin in chapter 82, Laws 1899, and continuing thenceforward without substantial change.
The constitutional provisions of this state which are invoked by the contestee in the effort to have the contest statute held entirely invalid are those relating to the jurisdiction of the Supreme Court of this state, being sections 1, 2, and 3 of article 5, and section 27 of article 3, which read respectively as follows: Article 5, § 1: “The judicial powers of the state, except as in this constitution otherwise provided, shall be vested in a supreme court, circuit courts, county courts, and justices of the peace, and such other courts as may be created by law for cities and incorporated towns.” Article 5, § 2:
“The supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive 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.”
“The legislature shall direct by law in what manner and in what courts suits may be brought against the state.”
Contestee, as the essential foundation to support his motion, premises that, under a Constitution such as ours and under the provisions above set out, the jurisdiction of the Supreme Court, as specified in the Constitution, is exclusive, and that the Legislature can neither add to nor detract therefrom, excepting only to such extent as the Constitution itself may expressly or by necessary implication authorize. Such premise is so clearly correct as scarcely to be open to question and it is not seriously questioned by contestant. See Winner Milling Co. v. C. & NW Ry. (1921) 181 N.W. 195; dissenting opinion in State ex rel Kriebs v. Halladay (1928)(and in this connection it may be stated that all the judges agreed that the views expressed in such dissenting opinion relating to the jurisdiction of this court were correct; but a majority of the judges thought that, inasmuch as only questions of law were presented, and the jurisdictional question was not raised by the parties, and this court had previously and frequently assumed such jurisdiction, and if jurisdiction therein were refused the case would merely go into the circuit court and come directly back to this court on appeal, it was not prudent for the court to raise the jurisdictional point of its own motion and dispose of the case thereon). See, also, Hubbell v. McCourt (1878) 44 Wis. 584; State v. Flinn (1820) Minor (Ala.) 8; In re Nichols Petition (1897) 180 Pa. 591, 37 A. 95; Whipple v. Stevenson (1898) 25 Colo. 447, 55 P. 188; Edney v. Baum (1903) 70 Neb. 159, 97 N.W. 252; In re Burnette (1906) 73 Kan. 609, 85 P. 575; Gantt v. Brown (1912) 244 Mo. 271, Ann. Cas. 1913D, 1283; In re Bowers (1916) 137 Tenn. 193, 192 S.W. 919; State v. True (1919) 26 Wyo. 314, 184 P. 229.
Accepting this fundamental premise, it is apparent that the precise questions for solution in order to determine the constitutionality of the contest statute are these: First, does the Constitution of this state in self-executing terms confer upon this court any jurisdiction such as is necessarily invoked in a proceeding under the contest statute; second (if the first question be answered in the negative), does the Constitution, either expressly or by necessary implication, authorize the Legislature to confer upon this court such jurisdiction as is attempted to be conferred by the contest statute?
A negative solution of the first question is apparent from a mere inspection of the Constitution. Jurisdiction under the contest statute is original and in no sense appellate. The only original jurisdiction directly conferred upon this court by self-executing constitutional provision is the power specified in the first sentence of section 3, art. 5, Constitution (supra) to issue writs of habeas corpus. Quite palpably an election contest in no wise partakes of the nature of a writ of habeas corpus, and original jurisdiction thereof in this court must therefore depend upon the constitutional power of the Legislature and not upon any self-executing provision of the Constitution.
Again examining the Constitution, it is apparent that the Legislature under section 27, art. 3, Constitution (supra), has the power to authorize the bringing in this court of a suit against the state. It is immediately manifest that the proceeding authorized by the contest statute is not in any sense a suit against the state, and it is unnecessary therefore further to consider section 27 of article 3.
There remains for consideration the portion of section 3 of article 5, following the first sentence, and reading as follows: “The supreme court shall also have power to issue writs of mandamus, quo warranto,...
To continue reading
Request your trial