Lavin et al. v. Bacon under Art. 3, Sec. 1, 14 S. D., 394; See also Art. 4, Sec. 4, in Re Opinion of Judges; See Art. 13, Sec. 4, Walling v. Lummis, 16 S. D., 350, 92, N. W., 1063.

§ 23. The legislature is prohibited from enacting any private or special laws in the following cases:

1. Granting divorces.

2. Changing the names of persons or places, or constituting one person the heir at law of another.

5. Incorporating cities, towns and villages or changing or amending the charter of any town, city or village, or laying out, opening, vacating or altering town plats, streets, wards, alleys and public ground.

6. Providing for sale or mortgage of real estate belonging to minors or others under disability.

7. Authorizing persons to keep ferries across streams wholly within the

9. Granting to an individual, association or corporation any special or exclusive privilege, immunity or franchise whatever.

10. Prividing for the management of common schools.

11. Creating, increasing or decreasing fees, percentages or allowances of public officers during the term for which said officers are elected or appointed. But the legislature may repeal any existing special law relating to the foregoing subdivisions.

In all other cases where a general law can be applicable no special law shall be enacted.

STATUTES-SPECIFIC-GENERAL-COUNTIES—BOUNDARIES.

Since it was the function of the legislature to determine whether or not a general law could be made applicable to an unspecified subject, a special act (Laws 1897, c. 41), providing for a change of the boundaries of Stanley county was not in violation of the constitutional provision.

Stuart et al. v. Kirley et al., 12, S. D., 246, 81 N. W., 147; See also Art. 13, §5, Heyler v. City of Watertown, 16 S. D., 25, 91 N. W. 334.

COUNTIES

INSANE-SUPPORT-CHARGES-ESTATE.

Laws 1895, Chap. 98, § 1, making the expenses incurred by a county in caring for an insane person a charge against his estate, where such insane person has no heirs within the United States dependant on said estate for support, does not violate Const. Art. 3, § 23, or Art 6, § 18.

Bon Homme County v. Berndt et al., 13 S. D.. 309, 83 N. W., 333.

§ 24. The legislature shall have no power to release or extinguish in whole or in part, the indebtedness, liability or obligation of any corporation or individual to this state, or to any municipal corporation therein.

LIABILITIES RELEASE.

The legislature having, under Const. Art. 3, § 24, no power to release or extinguish a liability to the state, Laws 1897, c. 84, attempting to release any rights of the state in certain lands, is inoperative.

State v. Mellette, 16 S. D., 298, 92 N. W., 395.

§ 25. The legislature shall not authorize any game of chance, lottery or gift enterprise under any pretense, or for any purpose whatever.

§ 26. The legislature shall not delegate to any special commission, private corporation or association, any power to make, supervise or interfere with any municipal improvement, money, property, effects, whether held in trust or otherwise, or levy taxes, or to select a capital site, or to perform any municipal funetions whatever.

DELEGATION OF MUNICIPAL FUNCTIONS-COMMISSIONS.

Laws 1905, p. 275, c. 163, creating a board, to be known as the "State Capitol Commission," for the purpose of procuring the erection of a capitol building and authorizing the commission to procure the erection of a build

ing, adopt plans and specifications, etc., is not in conflict with Const. art. 3, § 26.

Davenport v. Elrod et al., 20 S. D., 567, 107 N. W., 833, Capitol Com'rs.

$ 27. The legislature shall direct by law in what manner and in what courts suits may be brought against the state.

§ 28. Any person who shall give, demand, offer, directly or indirectly, any money, testimonial, privilege or presonal advantage, thing if value to any executive or judicial officer or member of the legislature, to influence him in the performance of any of his official or public duties, shall be guilty of bribery and shall be punished in such manner as shall be provided by law.

The offense of corrupt solicitation of members of the legislature, or of public officers of the state, or any municipal division therof, and any effort toward solicitation of said members of the legislature or officers to influence their official actions shall be defined by law, and shall be punished by fine and imprisonment. Any person may be compelled to testify in investigation or judicial proceedings against any person charged with having committed any offense of bribery or corrupt solicitation, and shall not be permitted to withhold his testimoney upon the ground that it may criminate himself, but said testimony shall not afterward be used against him in any judicial proceeding except for bribery in giving such testimony, and any person convicted of either of the offenses aforesaid, shall be disqualified from holding any office or position or office of trust or profit in this state.

§ 1.

ARTICLE IV.

EXECUTIVE DEPARTMENT

The executive power shall be vested in a governor who shall hold his office two years. A lieutenant governor shall be elected at the same time and for the same term. § 2.

No person shall be eligible to the office of governor or lieutenant governor except a citizen of the United States and a qualified elector of the state, who shall have attained the age of 30 years, and who shall have resided two years next preceding the election within the state or territory; nor shall he be eligible to any other office during the term for which he shall have been elected.

§ 3. The governor and lieutenant governor shall be elected by the qualified electors of the state at the time and places of choosing members of the legislature. The persons respectively having the highest number of votes for governor and lieutenant governor shall be elected; but if two or more shall have an equal and highest number of votes for governor or lieutenant governor, the two houses of the legislature at its next regular session shall forthwith, by joint ballot, choose one of such persons for said office. The returns of the election for governor and lieutenant governor shall be made in such manner as shall be prescribed by law.

§ 4. The governor shall be commander-in-chief of the military and naval forces of the state, except when they shall be called into the service of the United States, and may call out the same to execute laws, suppress insurrection and repel invasion. He shall have power to convene the legislature on extraordinary occasions. He shall, at the commencement of each session, communicate to the legislature by message, information of the condition of the state, and shall recommend such measures as he shall deem expedient. He shall transact all necessary business with the officers of the government, civil and military. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws be faithfully executed.

LANDS-GRANTS-MILITIA ENCAMPMENT GROUNDS.

Act. Cong. Oct. 1, 1890, granted lands to the state to be used as a permanent camp and parade grounds, and for such other purposes, in connection with the training and education of the militia, as the legislature may direct, the lands to revert to the United States when the state shall cease to use them for such purposes. Held, that, in the absence of legislative provision,

1

such lands are in the care and control of the governor, as commander-inchief of the military forces of the state.

In re opinion of Judges, 13 S. D., 191, 83 N. W., 96.

§ 5. The governor shall have the power to remit fines and forfeitures, to grant reprieves, commutations and pardons after conviction, for all offenses except treason and cases of impeachment; Provided, that in all cases where the sentence of the court is capital punishment, imprisonment for life, or for a longer term than two years, or a fine exceeding two hundred dollars, no pardon shall be granted, sentence commuted or fine remitted, except upon the recommendation in writing of the board of pardons, consisting of the presiding judge, secretary of state and attorney general, after a full hearing in open session, and such recommendation, with the reasons therefor, shall be filed in the office of the secretary of state; but the legislature may by law in all cases regulate the manner in which the remission of fines, pardons, commutations and reprieves, may be applied for. Upon conviction for treason he shall have the power to suspend the execution of the sentence until the case shall be reported to the legislature at its next regular session, when the legislature shall either pardon or commute the sentence, direct the execution of the sentence or grant a further reprieve. He shall communicate to the legislature at each regular session each case of remission of fine, reprieve, commutation or pardon, granted by him in the cases in which he is authorized to act without the recommendation of the said board of pardons stating the name of the convict, the crime of which he is convicted, the sentence and its date, and the date of the remission, commutation, pardon or reprieve, with his reasons for granting the same.

§ 6. In case of death, impeachment, resignation, failure to qualify, absence from the state, removal from office, or other disability of the governor, the powers and duties of the office for the residue of the term, or until he shall be acquitted, or the disability removed, shall devolve upon the lieutenant governor.

§ 7. The lieutenant governor shall be president of the senate, but shall have only a casting vote therein. If during a vacancy in the office of governor the lieutenant governor shall be impeached, displaced, resign or die, or from mental or physical disease or otherwise become incapable of performing the duties of his office, the secretary of state shall act as governor until the vacancy shall be filled or the disability removed.

§ 8. When any office shall, from any cause, become vacant and no mode is provided by the constitution or law for filling such vacancy, the governor shall have power to fill such vacancy by appointment.

OFFICE VACANCY-EXECUTIVE POWER-TERM.

1. There being no provision for filling vacancies in Article 14 of the Constitution, creating a board of regents of education, nor in the act of the legislature enacted to carry into effect that article, a vacancy in such board can only be filled by the governor, pursuant to the provisions of Section 8, Art. 4, of the Constitution.

2. By that section, the power of the governor under such conditions to fill a vacancy, is for the unexpired term of the member whose place the appointment is made to fill.

3. When a vacancy is filled by appointment by the governor under the provisions of that section, no confirmation of the appointment by the senate is required,

4. The sections of the Constitution should be construed together, and such a constitution given to them as will give effect to each section, and as far as possible, harmonize their provisions.

5. So construed, the clause of Section 3, Art. 14, should be construed to read, "except in cases of vacancies filled by appointment by the govern

or."

State ex rel, Holmes, State's Attorney, v. Finnerud, 7, S. D., 237, 64 N. W., 121; See also State ex rel. Lavin v. Bacon, 14 S. D., 284-394, Article 14, Sec. 2, 85 N. W. 225; State ex rel. Wood v. Sheldon, Art. 14, Sec. 3.

§ 9. Every bill which shall have passed the legislature, shall, before it becomes a law, be presented to the governor. If he approve, he shall sign it, but if not, he shall return it with his objection to the house in which it originated, which shall enter the objection at large upon the journal and proceed to reconsider it. If after such reconsideration, two-thirds of the members present shall agree to pass the bill, it shall be sent, together with the objection, to the other house, by which it shall likewise be reconsidered, and if it be approved by twothirds of the members present, it shall become a law; but in all such cases the vote of both houses shall be determined by the yeas and nays, and the names of the members voting for and against the bill shall be entered upon the journal of each house respectively. If any bill shall not be returned by the governor within three days (Sundays excepted) after it shall have been presented to him, the same shall be a law, unless the legislature shall by its adjournment prevent its return; in which case it shall be filed, with his objection, in the office of the secretary of state, within ten days after such adjournment, or become a law.

§ 10. The governor shall have power to disapprove of any item or items of any bill making appropriations of money embracing distinct items, and the part or parts of the bill approved shall be law, and the item or items disapproved shall be void, unless enacted in the following manner: If the legislature be in session he shall transmit to the house in which the bill originated a copy of the item or items thereof disapproved, together with his objections thereto, and the items objected to shall be separately reconsidered, and each item shall then take the same course as is prescribed for the passage of bills over the executive veto.

§ 11. Any governor of this state who asks, receives or agrees to receive any bribe upon any understanding that his official opinion, judgment or action shall be influenced thereby, or who gives or offers, or promises his official influence in consideration that any member of the legislature shall give his official vote or influence on any particular side of any question or matter upon which he may be required to act in his official capacity, or who menaces any member by threatened use of his veto power, or who offers or promises any member, that he, the said governor, will appoint any particular person or persons to any office created or thereafter to be created, in consideration that any member shall give his official vote or influence on any matter pending or thereafter to be introduced into either house of said legislature or who threatens any member that he, the said governor, will remove any person or persons from any office or position with intent to in any manner influence the official action of said member, shall be punished in the manner now, or that may hereafter be provided by law, and upon conviction thereon shall forfeit all right to hold or exercise any office of trust or honor in this state.

§ 12. There shall be chosen by the qualified electors of the state at the time and places of choosing members of the legislature, a secretary of state, auditor, treasurer, superintendent of public instruction, commissioner of school and public lands, and an attorney general, who shall severally hold their offices for the term of two years, but no person shall be eligible to the office of treasurer for more than two terms consecutively. They shall respectively keep their offices at the seat of government.

§ 13. The power and duties of the secretary of state, auditor, treasurer, superintendent of public instruction, commissioner of school and public lands and attorney general shall be as prescribed by law.

SECRETARY OF STATE-FEES-BRAND AND MARK COMMISSION.

Under Laws 1897. c. 90, making the secretary of state a member of the brand and mark committee, and providing that 20 per cent, of the fees paid under said act shall be paid to each member of said state brand and mark committee as full compensation for their services, the secretary of state is entitled to receive such 20 per cent, in addition to his salary as secretary of state, as compensation for his services as a member of the brand and mark committee, notwithstanding Const. Art. 4, 13; Id. Art. 21, § 2.

State v. Roddle, 12 S. D., 433,

3, Sec. 21, 51, N. W., 1019.

81 N. W., 980; See State v. Becker, 3 S. D., 29, Art.

ARTICLE V.

JUDICIAL DEPARTMENT

§ 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.

POLICE MAGISTRATE-JURISDICTION-EMBEZZLEMENT.

Comp. Laws, § 7119, designates as examining magistrates police and other special justices appointed or elected in a city, village, or town. Held, that a police justice was authorized to act as a committing magistrate on a prosecution for embezzlement.

State v. Wright, 15 S. D., 628, 91 N. W., 311.

$ 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.

MANDAMUS TO INFERIOR COURTS-CITY COUNCIL EXCEEDING AUTHORITY-INJUNCTION COMPENSATION OF CITY ATTORNEY

AUTHORITY OF CITY TO EMPLOY ASSISTANTS.

1. Article 5, § 2, materially enlarges the ordinary appellate jurisdiction conferred upon reviewing courts.

2. This added power authorizes this court, by writ of mandamus, to control and correct the proceedings of an inferior court where the action complained of exceeds the jurisdictional powers of such court, or there has been a manifest abuse of discretion, and where the case is urgent, and an appeal will not afford adequate remedy, and the circumstances of the case are such as to require immediate review of the proceedings.

3. The power of this court to issue the writ of mandamus to correct the proceedings of an inferior court necessarily includes the power to review the proceedings of such court, and to determine whether or not the case is a proper one for the exercise of the authority vested in this court.

4. It is one of the fundamental rules of law that the judicial power cannot interfere with the legitimate discretion of any other department of government so long as it does no illegal act, and conducts its business within the limits of the powers conferred upon it and committed to its exercise, and when in the exercise of its powers it is not chargeable with an abuse of discretion.

City of Huron v. Campbell, Circuit Judge, 3 S. D., 309, 53, N. W., 182. Laws 1897, c. 55, amending Comp. Laws. § 5213, so as to prohibit appeals from circuit to supreme court in actions for the recovery of money where

the amount recovered is $75 or less, or for the recovery of personal property of that value or less, is not void under Const. Art. 5, § 2, since such article does not attempt to prescribe the class of cases in which an appeal may be taken.

McClain v. Williams, 10 S. D., 332, 73 N. W., 72; See also State v. Cram, 20 S. D., 160.

MANDAMUS-COUNTY JUDGE QUALIFICATION-PROBATE.

Under Const. Art. 5, § 2, the supreme court will grant a mandamus compelling a circuit court to receive an application to take jurisdiction to determine the existence of an alleged disqualification of a county judge in a probate proceeding.

Vine et al. v. Jones, Judge, et al., 13 S. D., 54, 82 N. W., 82. SUPREME COURT-WRIT OF

CERTIORARI-ATTORNEY GENERAL

ELECTIONS-UNORGANIZED COUNTIES.

1. Under Sections 2 and 3, Art. 5, of the Constitution of the state, the original jurisdiction of the supreme court includes the power to issue, hear,