(concurring in part, dissenting in part).
I concur in the opinion in as far as it determines the issues directly involved and in the affirmance of the judgment; but cannot agree with the direction that similar actions be commenced and tried originally in the circuit court. While this may be desirable and a better method than presently exists, or more accurately heretofore existing, that choice is dictated by the constitution to be made by the legislative department of the government and not the judicial department. Art. Ill, § 27 of our Constitution still reads; "The legislature shall direct by law in what manner and in what courts suits may be brought against the state." The legislature has made such direction by enacting SDC 1960 Supp. 33.0604 and that to me forecloses the court from making a different direction.
This is an action against the State, with attributes of sovereignty, 81 C.J.S. States § 2, one of which does not permit a state to be sued by an individual in any court. 81 C.J.S. States §§ 214, 215; Darnall v. State, 79 S.D. 59, 108 N.W.2d 201. This immunity is absolute except only an action by the United States or another state which must be brought in the United States Supreme Court. Article 3, § 2, of the U. S. Constitution and Article 11 of the Amendments thereof.
*171The reasons for this direction are numbered in the majority opinion and here discussed by the same numbers:
1. A requirement of a reasonable bond before bringing a suit against the state is not an unconstitutional requirement. City of Mitchell v. Western Public Service Co., 124 Neb. 248, 246 N.W. 484.
2. & 5. In Division III of Darnall we said under SDC 1960 Supp. 33.0604, formerly § 2111 of the 1919 Code, plaintiff had a constitutional right of trial by jury which the majority opinion continues to recognize.
3. There is no need of additional parties if the state is liable.
4. Article XI, § 9 of our Constitution has always provided: "No indebtedness shall be incurred or money expended * * * and no warrant shall be drawn upon the state treasurer except in pursuance of an appropriation for the specific purpose first made." The opinion holds an appropriation has been made to pay plaintiffs' claims in which I concur. However, I am reluctant to believe the court is, by listing it as a reason for the change, intending to exclude an appropriation requirement from these claims. If so, the court is determining a question not argued and. far reaching in effect.
6. & 7. That the procedure is not complex or difficult is indicated by the number of such actions filed in this court and determined with more dispatch than circuit court actions and resulting appeals.
8. Jury trials are not allowed in the Supreme Court "but in proper cases questions of fact may be sent * * * to a circuit court for trial before a jury." Art. V, § 3, S. D. Constitution. Our Constitution thus makes provision for such trials and the fact United States Supreme Court has many times appointed masters and other triers of issues of fact and law in that court does not indicate a pressing need for the present direction. That determination is for the legislature.
*172An anomalous result is reached as the majority opinion confirms its referee's finding of damages and the entry of a judgment of this court while at the same time it declares the circuit courts have jurisdiction and this court does not have jurisdiction of these actions.