In re Nelson

Citations

• 19 S.D. 214
• 102 N.W. 885
• 1902 S.D. LEXIS 1

Syllabus

<p>1. Under the provisions of Laws 1890, p. 254, c. 105, that all laws in force in the territory when the state was admitted, not inconsistent with the state Constitution, .shall continue in force until amended or repealed, Comp. Laws 1887, § 426, authorizing judges of circuit courts, on the request of the board of commissioners, or on their own motion, to appoint and hold special terms of circuit court in any county or subdivision, not having been amended or repealed, is in force.</p> <p>2. If subsequent legislation was required to give effect to Const, art. 5, §28,' providing that special terms of circuit court “may be held under such regulations as may be provided by law,” it became operative by the enactment of Laws 1890, p. 254, c. 105, declaring territorial laws not inconsistent with the state Constitution to be in force, which, in effect, re-enacted Comp. Laws 1887, §426, authorizing circuit judges to appoint and hold special terms of court.</p> <p>3. Laws 1890, p. 174, c. 76^ fixing the regular terms of circuit courts, did not, by implication, repeal Comp. Laws 1887, § 426, authorizing circuit judges to appoint and hold special terms of court.</p> <p>4. Under Const, art. 5, ? 27, declaring that “at least one term of the circuit court shall be held annually in each organized county,” and section 33, declaring that “until the Legislature shall provide by law for fixing the terms of courts, the judges * * * shall fix the terms thereof,” a circuit judge may call a special term of court in a newly .organized county where more than one year will intervene before the time fixed by law for holding the first regular term of court.</p> <p>5. Comp. Laws, §§ 7312-7318, providing for the rertfoval of a criminal action prosecuted by indictment, on the application of the state’s attorney, from the court in which it is pending, if the ofíense charged be punishable with death or imprisonment in the penitentiary, where it appears that a fair and impartial trial cannot be had