The great West. [volume] (St. Paul, Minn.) 1889-18??, 1894-02-02
SOUTH DAKOTA
SUPREME COURT.
Has Reversed it's Own Decision in
its Late Opinion.
The Governor Has no Power to
Appoint for Six Years.


In some quarters our article criticising
the South Dakota supreme judges for
advising the governor he could appoint
a supreme judge for six years was con-
sidered strong, but the extraordinary
assumption of power cannot be severely
denounced. Tue constitution of the
state clearly provides that the power of
choosing all the members of the iudici
airy shall belong to the people and the
people will not permit the republican
ringsters to take it away from them by
mere bubble. Lack of time pre- vented
a full investigation of the question last
week but the only decision of the courts
we were able to find were exactly con-
trary to the alleged inding of Judges
Kellam and Carson on which the govern
or assumed his power to appoint for six
years. We have still to find single
decision in any court in the United
States sustaining the extraordinary
"opinion" of the judges that the govern
or may override the state constitution,
but we find many against it, We invite
the attention of lawyers to the followin,
cases.
State v. Gamble, ID Fla. g..
State v. Comrades, As Mo. As.
State v. Johns, 3 Ore. 533.
Wilson v, Cobb, 2 Kan. 50.
McAlfee " Russell, 20 Miss. 81.
Patterson v. VIM, II Wheat 1856.
But it is entirely unnecessary to go
abroad for decisions. Our own supreme
court is on record on this very ques-
ton. In the first volume of Dakota
reports in the case of 1.-THE Territory
OK rel. McKinpis " Hand" is a de-
cision by Judge Bennett, the whole
court concurring, expressly declaring
that the power of appointment to an
elective office by th7 governor extends
ONLY TO THE FIRST ELECTION AT WHICH
THE VOTERS CAN ELECT. In order to
give their "opinion" that the governor
could give Fuller six-year job, Judg-
es Corson and Kellam had to reverse
the early decision of their own court.
The case was not an unimportant
one, Ior an obscure one. 1t grew out
OF the organization of Lawrence county.
The syllabus is "a follows:
L. County officers: term of Office County
officers appointed by the governor on the
next general election ensuing after such or
ganizatiOn in which their successors must be
elected.
2---If the next general election aft er
such organization be not o lie at which such
county officers are chosen for full term, the
successors of such appOfntees ust be chosen
to fill the unOccn pied term.
3.--- The appointees hold until the
next general election and until their successors
are elected and qualified; and In the absence
of any statute fixing positive time, the OH Ger
elect is entitled to. the office and its emolu
ments as soon az the result OF the election has
been officially declared and he has qualified as
required by law.
The record of the case shows the
board of county commissioners held that
the appointees should hold until after the
election ofl878 and the county clerk
refused to include the county officials
in his call for an election in 1877. 4
peremptory writ of mandamus was Sc
cured from the district court requiring
him to include the county officials in his
order of election. An appeal was taken
to the supreme court, seeking to set