(dissenting).
I would follow the decision of the North Dakota Supreme Court in State v. Allesi, N.D., 211 N.W.2d 733, and hold that the trial court’s dismissal of the informations had the same effect as an order entered pursuant to SDCL 23-51-2(2) would have had. Certainly, the order of dismissal was not a decision on the merits of the case. Cf. United States v. Martin Linen Supply Co., 430 U.S. 564, 97 S.Ct. 1349, 51 L.Ed.2d 642. To say that the reason given for dismissing the informations did not fall within any of the grounds specified in SDCL 23-36-1 does not mean that the effect of the order of dismissal was not to set aside the information. Although under State v. Reggio, 84 S.D. 687, 176 N.W.2d 62, and State v. Carlisle, 30 S.D. 475, 139 N.W. 127, the defendants would not have been entitled to an order setting aside the informations on the grounds stated in the trial court’s order, nevertheless the order was entered. The exclusivity of the grounds set forth in SDCL 23-36-1 may operate as a bar to a defendant’s claim that he has the right to have an information set aside on grounds not contained within that statute, but once a trial court has entered an order having the effect of setting aside an information, the effect of that order is not dispelled merely because it was not based upon grounds that would have given the defendant the right to call upon the court to invoke its statutory jurisdiction to enter such an order.
The principle expressed in State v. Stunkard, 28 S.D. 311, 133 N.W. 253, that it is for the legislature to expand the right of *763appeal should not be read as precluding this Court from reading the words of SDCL 23-51-2(2) in a manner that will recognize the realities of the situation before us. Granted that we cannot set our own jurisdictional requirements, State v. Devine, S.D., 257 N.W.2d 606, I see no reason why we are any more limited in construing 23-51-2(2) than we are in construing penal statutes, which are to be “construed according to the fair import of their terms, with a view to effect their objects and promote justice.” SDCL 22-1-1. To me, the fair import of SDCL 23-51-2(2) is that the state should be entitled to appeal from an order that has the effect of setting aside an information, so long as that order was not in any way based upon a resolution of some or all of the factual elements of the offense charged. United States v. Martin Linen Supply Co., supra. Accordingly, I would hold that we should consider the merits of the state’s appeal.