Stanton v. State

Citations

• 5 S.D. 515
• 59 N.W. 738
• 1894 S.D. LEXIS 93

Syllabus

<p>1. In an action against the state to recover for subsistence furnished for men and horses, alleged to have been called into service by the governor to assist in suppressing insurrection and repelling.invasion, a complaint is defective which alleges that the governor caused “tobe enlisted, enrolled, and mustered into the military service of the state a large number of soldiers, cavalary, rangers, and scouts,” to which such substance was furnished, without showing that there was no adequate and available militia already enrolled and organized as provided by law.</p> <p>2. If the governor had power to cause to be enlisted and mustered, into the service of the state, “soldiers, cavalary, rangers, and scouts,” other than those constituting the enrolled militia oi the state, such power would be an implied power springing from his paramount duty to suppress insurrection and repel invasion, and would only exist when and because the exercise of his ppwer to call out the enrolled and organized militia would be unavailing.</p> <p>3. The facts from which only such implied power could spring, conceding that he might have and exercise it, should be stated, in order to show its existence and his right to exercise it.</p> <p>4. Section 9, art. 11, of the constitution declares that “no indebtedness shall be incurred * * * by the state, * * * except in pursuance of an appropriation for the specific purpose first made,” and section 3, art. 12, provides, that, “the legislatui’e shall never * * * authorize the payment of any claims, or part thereof, created against the state under any agreement or contract made without express authority of law, and all such unauthorized agreements or contracts shall be null, and void.” Under these constitutional prohibitions, neither the governor nor his appointee could, “without express authority of law.” make a contract for the subsistence of these military forces which would be legally binding upon the state, and upon which an action could be main