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.