CHAPTER XV

THE JUDICIAL DEPARTMENT

Interpreting and Applying Law. We have studied how laws are passed and how they are enforced by the state, county, township, town, and city. In the enforcement of law there must be some method of deciding how the law applies in a given instance, or whether a person who is accused of violating the law is guilty or not. Courts are established to interpret the law and apply it in cases that arise. The United States maintains a system of courts to try cases which involve the federal constitution and laws (see Chapter VIII), and the state maintains courts to try cases which involve state laws.

The courts provided for by law in South Dakota are (a) the state supreme court, (b) circuit courts, (c) county courts, (d) municipal courts, and (e) courts of justices of the peace. All but the first two have been discussed (see Index for references).

State Supreme Court

Supreme Judges. The supreme court is the highest court in the state. It consists of five judges and holds all of its sessions at Pierre. Until 1909 there were only three judges. The judges are chosen from districts by a vote of the entire state, and their term is six years. While they necessarily live at Pierre, their legal residence is in the districts from which they were originally chosen. They must be licensed to practice law in the

state, thirty years old, citizens of the United States, residents of the state two years, and residents of the districts from which they are chosen. Vacancies are filled by appointment by the governor. At least three of the judges hear each case, and at least three must unite in a decision. They adopt their own rules and elect one of their members presiding judge. The presiding judge corresponds to chief justice (see Index), as he is called in the supreme court of the United States and of many states.

Officers. The judges appoint a clerk to record all decisions and proceedings; a reporter, who must be a lawyer, to publish the opinions and authorities filed by lawyers in cases before the court and the decisions of the court. These decisions are bound and preserved as "South Dakota Reports," and are quoted and referred to as authorities all over the United States; a marshal, to serve papers and perform such duties as the sheriff or constable does in lower courts; a librarian has charge of the law library; and stenographers write out testimony, decisions, etc.

Jurisdiction. By the jurisdiction of a court is meant the power of the court to try cases. There are two principal kinds of jurisdiction, original and appellate. By original jurisdiction of a court is meant its power to try cases beginning or originating there. Appellate jurisdiction is the power of a court to try cases that have been appealed to it from lower courts.

Original Jurisdiction. Very few cases ever originate in the supreme court. Nearly all of its work is in hearing cases that have been tried in a lower court, to determine whether the trial was legally conducted. Certain cases may begin in this court, usually those involving what are called remedial writs, such as injunctions, writs of mandamus, habeas corpus, certiorari (see "Writs" in

Glossary for definitions of these terms). The circuit court, however, usually issues these writs and tries the cases involved. In case the state auditor refuses to allow a claim against the state, action may be commenced in the supreme court.

Appellate Jurisdiction. Appeals may usually be taken to the supreme court from decisions of lower courts on the following grounds: (a) that the judge did not rule correctly as to what evidence should be admitted; (b) that the judge gave incorrect instructions to the jury, or (c) that the evidence was not sufficient to support the verdict. There are other grounds for appeal not so easily explained here. The supreme court may (a) affirm the judgment of the lower court, (b) reverse it, (c) order a new trial of the case, or (d) in certain cases may order a judgment to be entered in the court below.

No Jury. As a general rule judges of a court interpret the law and decide what it means in a given case, and juries decide what the facts are if they are in dispute. The supreme court is a court of law, not of fact, so it never has a jury. If a case coming before it involves a dispute as to what the facts are, the case, or that portion of it, is sent to a circuit court, where a jury is called, testimony taken, and the facts decided. There is no appeal possible from a decision of this court unless the case involves the laws or constitution of the United States or is a case between citizens of different states, in which case the matter may be transferred to a federal court. The famous Dred Scott decision (see any United States history) was one of this kind.

Constitutionality of a Law. Any law, city ordinance, decision of an officer, or legal proceeding of any kind must not violate the constitution of the state. The supreme court of the state is the only one that can finally

decide whether a given law, ordinance, etc., conforms to the state constitution.*

To License Attorneys. To practice law in any court of the state, excepting that of a justice of the peace, one must have a license. These licenses are granted by the supreme court of the state after an examination of the applicants. Graduates of the college of law at the state university are granted licenses without examination. (To practice law in any federal court, one must have a license issued by a United States district court.)

State Circuit Courts

Circuit Judges. The state is divided into twelve districts or "circuits," in each of which a judge is elected

Fig. 62. State Judicial Circuits. South Dakota is divided into twelve judicial circuits. This diagram shows the Indian reservations as bounded in 1911. S. R.-Standing Rock. C. R.-Chepenne River. C. C.-Cherry in 1911. L. B.-Lower Brule. P. R.-Pine Ridge. R. Rosebud.

for four years. He must be "learned in the law" (that is, licensed by the supreme court), twenty-five years of age,

The supreme court of the United States finally decides whether a law passed by congress, by the state legislature or any other law making body, or any legal decision or proceeding, violates the constitution of the United States.

See

Called circuits (Lat. circum, around+ire, to go) from the fact that the circuit judges go around from county to county trying cases. Index.

a citizen of the United States, a resident of the state one year, and a resident of the circuit where elected.

Officers. Each organized county elects a clerk of the courts (county and circuit courts) and a sheriff, who act as officers of the circuit court when it is held in the county (twice a year in each county). Stenographers are appointed by the judge to take down testimony and other transactions. Any attorney connected with a case that is being tried is also an officer of the court. In case a person accused of crime cannot afford to employ a lawyer to defend him, the judge appoints one and the county pays for his services.

Jurisdiction. The circuit court has original jurisdiction in almost any kind of case that may arise. The principal exceptions are as follows:

a. Probate Cases (see Index). These are tried in the county court. Many of them may be appealed to the circuit court.

b. City and Town Ordinances. Violations of city and town ordinances must be tried before city or town justices or municipal judges.

c. Federal Cases. Actions involving the Constitution, treaties, or laws of the United States, or those between states or between citizens of different states are tried in a United States court (see Chapters VIII and XXI). Crimes committed on Indian reservations are also tried in a federal court, and the state courts have no jurisdiction over them.

Other State Courts. County, municipal, and justice courts have limited jurisdiction in criminal and civil cases, and have the power of committing magistrates in case of felony. Most cases tried in these lower courts may be appealed to the state circuit court (see pp. 288 and 289).