Opinion
File No. 972.
Opinion filed August 18, 1960
Appeal from Circuit Court, Hughes County; Hon. O.K. Whitney, Judge.
Action by Unemployment Compensation Commissioner to prohibit Governor from proceeding further with removal of Commissioner from office. From the entry of order quashing and dismissing writ, Commissioner appeals.
Motion to dismiss appeal granted.
Stephens, Riter Mayer, Pierre, for Plaintiff and Appellant.
Parnell J. Donohue, Atty. Gen., Pat Morrison, Mobridge, for Defendant and Respondent.
Charges made against Alan Williamson as Unemployment Compensation Commissioner were heard before the Governor pursuant to SDC 1960 Supp. 17.0803-3. Following such hearing, but before any official action had been taken by the Governor, Williamson obtained an Alternative Writ of Prohibition from the Circuit Court of the Sixth Judicial Circuit, in Hughes County. By such writ the Governor was restrained from proceeding further with the removal of Williamson from office. On the return day the Trial Court, on the authority of In re Petition of Mee, 45 S.D. 303, 187 N.W. 540, declared itself to be without power to stay proceedings pending appeal and entered an order quashing and dismissing such writ. This appeal is from such order. No application was made to this Court for the preservation of the status quo. Thereafter the Governor formally removed Williamson from office and appointed his successor, who has duly qualified. Additionally, the term of office for which Williamson was appointed expired during the pendency of this appeal.
What was written by the Supreme Court of the United States in Jones v. Montague, 194 U.S. 147, 24 S.Ct. 611, 612, 48 L.Ed. 913, is explanatory of the action which must be taken here:
"The case before us is one in prohibition. * * * the thing sought to be prohibited has been done, and cannot be undone by any order of court. * * * any adjudication which this court might make would be only an ineffectual decision of the question whether or not these petitioners were wronged by what has been fully accomplished. Under those circumstances there is nothing but a moot case remaining, and the motion to dismiss must be sustained."
The motion herein to dismiss the appeal is granted.
All the Judges concur.
BANDY, Circuit Judge, sitting for SMITH, J., disqualified.