
    WINNER MILLING COMPANY, Respondent, v. CHICAGO & NORTH WESTERN RAILWAY COMPANY, Appellant.
    (181 N. W. 195.)
    (File No. 4659.
    Opinion filed January 29, 1921.)
    1. Appeals — Appeal From Railway Commissioners To Supreme Court, Statute Providing, Whether Valid — Constitution.
    Under 'Const., Art. 5, Sec. 1, vesting judicial power of the state in the Supreme Court, the circuit court, county court, justices of the peace, etc., and Sec. 2, providing that except as otherwise ■provided by Constitution, the Supreme Court shall have appellate jurisdiction only, and. shall have general superintending control over all inferior courts, held, that exercise of judicial power is limited to the tribunals enumerated in Sec. 1; that jurisdiction of Supreme Court is appellate only'except in matters enumerated in Sec. 3, which lattetr do not include .proceedings of the Board of Railroad Commissioners, while by Sec. 2 appellate jurisdiction, as well as superintending control therein defined is limited to appeals from o.ne of the inferior courts mentioned in Sec. 1; and Laws 1919, Chap. 29 0, purporting to authorize appeal from orders of the Board of Railroad Commissioners to Supreme Court, is invalid and unconstitutional; that to permit such an appeal to this Court would soon result in its time being monopolized hy such appeals to exclusion of business for which it was. created, and this in violation of constitutional limitations upon its powers.
    3. Appeals — Invalid Appeal to Supreme Court — Non-Objection By Respondent, Immateriality Of — Court’s Sni Sponte Refusal To Aet.
    Lven though no objection is raised by respondent to the jurisdiction of Supreme Court, -yet where such Court is without jurisdiction it will refuse to aet.
    Action by Winner 'Milling 'Company, a corporation, substituted as complainant for J. J. Brewer and L. A. Os'born co-partners a's Winner Milling Company, against the Chicago & Northwestern Railway Company, a corporation. An order of the State Board, of Railway Commissioners having been made directing defendant railroad, company to construct a sidetrack from its main line to plaintiff’s mill, defendant company attempted to appeal therefrom to the Supreme Court.
    Appeal dismissed for want of jurisdiction.
    
      A. K. Gardner, for Appellant.
    
      O. D. Olnvstead, for Respondent.
    
      
      Oliver B. Sweet, for Board of Railroad Commissioners.
   POLLEY, P. J.

This matter is here on appeal from an order made by the board of railroad commissioners. Plaintiff built a flour mill adjacent to the railroad right of way in the town of Winner. On petition by plaintiff to the board of railroad commissioners that body made an order directing the railroad company to construct a side track from the the main line of its road to plaintiff’s mill. -From such order the railroad company is attempting to appeal directly to this court.

By chapter 290, Laws of 1919, the Legislature attempted to authorize an appeal from orders made by the board of railroad commissioners directly to this court without first taking the matter to the circuit court. In this we believe the Legislature exceeded its constitutional powers.

The Constitution by section 1, article 5, vests the judicial power of the state in the Supreme Court, the circuit court, the county court, justices of the peace and such other courts as may be created by law for cities and towns. Section 2, art. 5, provides that, except as otherwise provided by the Constitution, the Supreme Court shall have appellate jurisdiction only, and shall have a general superintending control over all inferior courts. Tlie exercise of judicial power is limited to those tribunals enumerated in section 1. The jurisdiction of this court is appellate only, except in certain matters enumerated in section 3, article 5, which -do not include proceedings of the board of railroad commissioners, and 'by the ¡wording of section 2, it is very plain that the appellate' jurisdiction, as well as the superintending control over inferior courts, is limited to appeals from one of the inferior courts’ mentioned ini section 1. To hold otherwise would be to hold that the Legislature could authorize appeals directly to this court from boards of county commissioners, -city ’ commissions, or any other board or commission that the Legislature-might see fit to create, as well as the board of railroad commissioners. So far as we are advised, no- appellate court existing under constitutional provisions similar to ours has even entertained such appeals. This court refused to entertain, an appeal from the order of a circuit judge made in- chambers (Holden v. Haserodt, 3 S. D. 4, 51 N. W. 340), and the same has been held in Wisconsin (Hubbell v. McCourt, 44 Wis. 584; State v. Brownell, 80 Wis. 563, 30 N. W. 413.) In Arkansas and North Carolina under constitutional provisions similar to ours, it is held that appeals will not lie from the board of railroad commissioners directly to the Supreme Court. Ex parte B. R. R. Co., 39 Ark. 82; Pate v. Railroad Co., 122 N. C. 877, 29 S. E. 334. If appeals could be taken directly to this court from the board of railroad commissioners, county commissioners, city commissions, and such other tribunals as the Legislature may from time to time see fit to create, it would not be long until the time of this court would be monopolized by such appeals, to the exclusion of the business for which the court was created. As was said by the Supreme Court of Wisconsin in Hubbel v. McCourt et al. supra:

“This court has an abundance of labor to perform in the discharge of those .duties which are conferred upon -it by the Constitution, and the laws made in conformity therewith, without assuming other burdens, not sanctioned by the Constitution, which might be attempted to be imposed upon it by legislation in violation of the constitutional limitations upon its powers.”

No objection to the jurisdiction of the court is raiesd by the respondent, but that is not material. Where the court is without jurisdiction, it will refuse to act. Oneida Navigation Co. v. W. & S. Job & Co., Inc., 252 U. S. 521, 40 Sup. Ct. 357, 64 L. Ed. 697.

The appeal will be dismissed for want of jurisdiction.  