(concurring in part and dissenting in part).
I.
With reference to the propriety of the issuance of a writ of prohibition by the circuit court it appears to me Judge Burns was correct in denying it. SDCL 16-6-15, the statute that gives power to circuit courts, provides:
*540"The circuit court has the power to issue writs of habeas corpus, mandamus, quo warranto, certiorari, and all other writs necessary to carry into effect its judgments, decrees, and orders (none is here involved), and to give to it a general control over inferior courts, officers, boards, tribunals, corporations, and persons." (emphasis supplied)
Appeals from municipal courts may only be taken directly to the Supreme Court. The
"procedure * * * shall be the same as the procedure for taking appeals from the circuit court to the Supreme Court." SDCL 15-32-36.
The municipal court, therefore, is not an "inferior" court to the circuit court. The circuit court has no jurisdiction over municipal courts. See Yankton County v. Codington County, 66 S.D. 599, 287 N.W. 498.
In Farnham v. Colman, 19 S.D. 342, 103 N.W. 161, 1 L.R.A. (N.S.) 1135, 117 Am.St.Rep. 944, 9 Ann.Cas. 314, this court said "mandamus from the circuit court will never lie to reverse the judicial action of such officers" (a Justice of the Peace sitting as committing magistrate who refused to punish a witness for disobeying a subpoena). In sum the circuit court had no supervisory power even over a Justice of the Peace to reverse his action by mandamus, which is a counterpart of the writ of prohibition. SD-CL 21-30-1. These writs are issued only when there is no "plain, speedy, and adequate remedy, in the ordinary course of law." SDCL 21-29-2. Therefore, I am in agreement with Judge Hanson's opinion on that issue.
II.
I have grave doubts of the power of this court or of the advisability of transferring an appeal from a circuit court order duly entered by it to read or be treated as an application in this court for permission to commence an original action in it where no application was made as required by SDCL 15-25-2. It will set a precedent which may encourage others to request similar actions *541here when they should properly be brought and determined in trial courts. This is especially so when our workload is becoming increasingly larger. Nor should we do so when a party has an adequate remedy at law. SDCL 21-29-2, supra. The answer has been given many times, for instance, in State ex rel. Clough v. Taylor, 58 S.D. 647, 238 N.W. 22, when the court wrote as to the original proceeding against Judge Taylor:
"The merits of the question presented are interesting, but in order to conform to prior decisions of this court, and to make an orderly disposal of the business before this court without giving preference, we are precluded from considering the merits.
"It is apparent that the petitioner has an adequate remedy at law by appeal to this court. Petitioner in fact is merely using the writ here applied for as a method of appeal. This will not be permitted."
Defendant here should proceed in the regular course of law and not be afforded this extraordinary remedy. Generally the Supreme Court has not granted permission to commence suit for writs of mandamus or prohibition as original actions here, nor may the court do so. Our authortty is limited by the Constitution and statutes. Art. V, § 3 of our Constitution provides:
"The Supreme Court and the judges thereof shall have power to issue writs of habeas corpus. The Supreme Court shall also have power to issue writs of mandamus, quo warranto, certiorari, injunction and other original and remedial writs, with authority to hear and determine the same in such cases and under such regulations as may be prescribed by law".
Pursuant thereto the legislature enacted SDCL 15-25-1 which provides:
"The exercise of the original jurisdiction granted the Supreme Court by sections 2 and 3, article V of the Constitution, is reserved for the consideration of matters of prerogative, extraordinary, and general concern."
*542The court has consistently adhered to the limitation of these enactments. See Everitt v. Board of County Commissioners, 1890, 1 S.D. 365, 47 N.W. 296, followed in Stanley County v. Jackson County, 36 S.D. 350, 154 N.W. 806; Overpeck v. Wiedenman, 1964, 81 S.D. 146, 132 N.W.2d 213, and other cases cited under Art. V, § 3, of our Constitution. SDCL 21-29-2, supra, also applies to this court. SDCL 15-24-1. Permission to appeal from similar intermediate orders has been denied in the past, even under the claim made that a party is subjected to the expense and harassment of a trial.
III.
As to the merits of this appeal, courts of other states have not arrived at any general rule, and neither those courts nor this court has, as Judge Hanson phrases it, "achieved a satisfactory accommodation between prosecutions under municipal ordinances and state (criminal) prosecutions". The opinions of the Minnesota court while they were concerned with this problem of D.W.I. cases leading up to State v. Hoben, 256 Minn. 436, 98 N.W.2d 813, indicate the problem. But, as I read Hoben, the court rested its decision solely on a statute — § 169.03. There the legislature specifically directed the provisions of that chapter shall be
" 'applicable and uniform throughout this state and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any rule or regulation in conflict with the provisions of this chapter unless expressly authorized herein.'
and that when any local ordinance covers the same subject " 'then the penalty * * * shall be identical with the penalty' " provided in the state statute. Since Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435, a person may not be prosecuted for the same offense by the municipal corporation and the state, and our earlier cited cases to the contrary no longer appear to be controlling.
Statistics show that the drinking driver is a major cause of death, loss of limb and destruction of property to such an extent that the United States has initiated the Alcohol Safety Action Pro*543gram (ASAP) at great expense to diminish or cure the problem. The conclusion that this situation should be the reason for making it more difficult to control or prevent such conduct by requiring a jury trial for the first conviction- — -even with the added deprivation of the privilege of driving a car — escapes me. Juries are not required in hearings on the revocation of driving permits, so that cannot be a reason for allowing jury trials. It may be questionable whether society or the courts deem it a serious offense, though the resulting damage is great. The general public does not seem to regard drinking or a person under the influence of intoxicating liquor as bad or immoral, rather some now hold it to be a disease to be treated as such. Nor do the courts so deem it, even as to D.W.I. violations; at least the sentences do not indicate that concern.
The pictures in #10942, City of Sioux Falls v. Bohner, 86 S.D. 527, 199 N.W.2d 499, decided this date, show defendant drove off the road into the yard and porch of a home with danger to persons lawfully there, yet the court fined defendant $150 with only a 7-day actual jail sentence to be served. The prohibition against driving on the city streets was fixed at 30 days by the court. Do the day-to-day sentences of $100 and $150 fines and jail sentences, either not imposed or suspended, reflect that concern?
I am not clear as to the majority opinion's basis of jury requirement. It is not a constitutional one (City of Brookings v. Thomsen, 1970, 84 S.D. 651, 176 N.W.2d 46; 47 Am.Jur.2d, Jury, § 53), and under very recent opinions of the United States Supreme Court, our national Constitution does not require it. That court lately held a jury is not required for criminal offenses, said to be petty and defined as those not exceeding a $500 fine and a 6-month imprisonment. Duncan v. Louisiana, 1968, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491. Cf., Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437. Williams v. Florida, 1970, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446, held that states are free under the United States Constitution to fry defendants in felony cases with juries of less than 12 men (6 in the Williams case). More recently on May 22, 1972, that court approved non-unanimous jury verdicts of guilty by votes of 10-2 and 9-3 in felony cases, and a state statute permitting a unanimous verdict of juries *544of five in accord with Williams v. Florida, supra. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (12-man Jury, 9-3 guilty verdict upheld), and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (one 10-2 and two 11-1 guilty verdicts approved).
The legislature in municipal ordinance cases has authority to provide regulations for a jury, its size, etc. It has done so as to proof in 1966. SDCL 16-11-55. I would leave it there as other courts and 'states have, some of which are cited in the footnote. * What concerns me is our extension of jury requirement in this municipal ordinance case when the trend of the U.S. Supreme Court is contra. Does it encompass all cases where the penalty may be a fine net exceeding $100 or 30-days imprisonment, or both, as municipalities without functioning municipal courts are limited? Is this jury to be 5, 6, 10 or 12? See "The Six-Man Jury", 17 S.D.Law Rev. 285. Must the verdict be unanimous? 3/4ths? 5/6ths? If it is above these standards, then the court is fixing higher standards and requirements for enforcement of city ordinance violations than the U. S. Supreme Court requires states to provide in felony prosecutions. I am not persuaded to concur in a decision which may hamper rather than aid in the solution of the problem. It should rest with the legislature, as City of Brookings v. Thomsen, supra, in 1970 recognized when it wrote the legislature had "not granted the right by statute". Austin v. City and County of Denver, 1969, 170 Colo. 448, 462 P.2d. 600, which considers Duncan v. Louisiana, supra, is a well written opinion in accord with our Brookings opinion. We should pause before we so soon overturn or qualify those pronouncements. I therefore dissent.
The following briefly states the decisions of courts:
Proceedings for violation of an ordinance are not criminal prosecutions within the United States or South Dakota Constitutions as to require appointment of counsel at public expense for indigents. Application of Wright, 1971, 85 S.D. 669, 189 N.W.2d 447.
In a prosecution for D.W.I. under a city ordinance, defendant is not entitled to a jury trial even though his license to drive may be revoked. The constitutional provision that the right of trial shall remain inviolate only means that it is to remain as it was at the time of the adoption of the constitution. The offense did not exist at that time, and it being a petty offense, the right of jury trial is not within the constitutional guaranty and is a legislative matter. The legislature not having given such a right, it does not exist, even though a defendant might have the right if prosecuted under a similar statute. State v. Amick, 173 Neb. 770, 114 N.W.2d 893, and State v. Lookabill, 176 Neb. 254, 125 N.W.2d 695, as modified in 176 Neb. 415, 126 N.W.2d 403.
No juty trial is required even where state law is copied in the ordinance and defendant could have had a jury trial if a state prosecution. Hudson v. City of Las Vegas, 1965, 81 Nev. 677, 409 P.2d 245. Acc: City of Albuquerque v. Arias, 64 N.M. 337, 328 P.2d 593, no jury, DrW.I. where license may be revoked for one year. See also 50 C.J.S. Juries § 77, page 783, and 47 Am.Jur.2d, Jury, § 53.