
    STATE ex rel. JOHNSON, Appellant, v. PIKE et al., Respondents.
    (161 N. W. 813.)
    (File No. 4150.
    Opinion filed March 22, 1917.
    Rehearing granted May 5, 1917.)
    Apireáis — Disqualified Judge — Divided Court, No Daw for Substitute Judge — AfiSrmance.
    Where, on appeal to Supreme Court, one of the Judges of the Court is disqualified to sit in the case, and the remaining members are evenly divided upon the questions involved, and there being no law for calling in a substitute judge, the order appealed from will bet affirmed by a divided court. . ■
    Appeal from Circuit Court, Gregory County. Hon. William WILLIAMSON, Judge.
    Procéeding by the State of South Dakota, on the relation of Charles A. Johnson, again.st A. E. Pike and others. From a judgment for defendants, plaintiff appeals.
    Affirmed by divided court.
    
      Charles A. Davis, and French & Orvis, for Appellant.
    
      W. J. Hoofer, /. F. Frame, and O. F. Ford, for Respondent.
   GATES, P.. J.

Smith, J., having" presided at the trial in circuit court-of the case of State ex rel. Simons v. Nyquist, 22 S. D. 200, 116 N. W. 754, declines to participate in the decision of this appeal 'believing himself -disqualified. In that case the vital issues of this appeal were involved. The remaining members of this court being divided upon the questions involved herein, and there being no provision of law for calling in a substitute judge, the order appealed from is affirmed by a divided court. No costs will "be taxed.  