Appeal
from Circuit Court, Lawrence County; James McNenny, Judge.
Mandamus
proceeding by the State, on the relation of Roy W. Cook and
others, against Clinton G. Richards, State's Attorney of
Lawrence County. From a judgment awarding a peremptory writ
of mandamus, the defendant appeals.
Affirmed.
CAMPBELL
P. J.
Prior
to 1932, Lawrence county, S. D., was divided into five
commissioner districts; the first embracing the city of
Deadwood and some outside territory, the second the city of
Spearfish and some outside territory, the third a portion of
the city of Lead with some outside territory, the fourth a
portion of the city of Lead with some outside territory, and
the fifth the towns of Nemo and Terry and some adjacent
outside territory. At the regular meeting of the county
commissioners in January, 1932, said commissioners undertook
to redistrict the county pursuant to the requirements of
section 5864, R. C. 1919, which reads as follows: "It
shall be the duty of the board of county commissioners, at
its regular meeting in January, 1920, and every four years
thereafter, after giving notice by publication for three
weeks in the official papers of the county, to change the
boundaries of the commissioner districts whenever such change
shall be necessary in order that each district shall be as
regular and compact in form as is practicable, and it shall
so divide and redistrict its county that each district may
contain as near as may be within one hundred of the same
number of votes, as shown by the official returns of the
votes cast at the last election held prior to the date of the
meeting mentioned herein at which election state and county
officials were elected; providing, in such redistricting, no
voting precinct shall be divided; provided, also, that no
incorporated city shall be divided into more than two
commissioner districts."
Certain
taxpayers of the county suggested to the county commissioners
a proposed plan of redistricting as follows: The first
district to consist of a portion of the city of Lead; the
second district of the remainder of the city of Lead; the
third district a portion of the city of Deadwood with certain
adjacent territory; the fourth district the city of Spearfish
and certain surrounding territory; and the fifth district the
remainder of the city of Deadwood and certain adjacent
territory. On that basis the votes of the respective
districts proposed by the official returns at the last
previous election would have been for the first district
813; for the second district, 873; for the third district
827; for the fourth district, 802; and for the fifth
district, 792. The board of county commissioners failed to
approve of said suggestion, however, and presently
unanimously adopted a resolution for redistricting in the
following form:
"The matter of redistricting Lawrence County, South
Dakota into commissioner districts, having come on before the
Board of Commissioners of Lawrence County, on due notice as
by law required, upon the 12th day of January, 1932, and
certain parties requesting a change in the boundaries of said
district having appeared before said Board, and having been
fully heard and the Board being fully advised in the matter
of the extent of the territory and the number of residents in
each of said Commissioner districts now existing, on motion
of Mr. Curran, seconded by Mr. Dixon, it is by the said Board
of Commissioners, resolved
"That the boundaries of the commissioner districts in
Lawrence County, South Dakota, be established, so as to
include in each of the several districts territory as
follows:
District No. 1:
|
Central City ..............
|
99
|
Deadwood,
|
1st Ward ...............
|
98
|
2nd Ward ..............
|
167
|
3rd Ward ..............
|
236
|
4th Ward ..............
|
333
|
Mountain Ranch ............
|
12 945
|
District No. 2:
|
Hathaway ..................
|
20
|
Crook City ................
|
11
|
Centennial ................
|
29
|
Crow Creek ................
|
42
|
Reeds .....................
|
55
|
Spearfish ................
|
577
|
Spring Creek ..............
|
15
|
School District No. 57 ....
|
25
|
St. Onge ..................
|
78
|
Upper False Bottom ........
|
23
|
Whitewood .................
|
97 972
|
District No. 3:
|
Lead,
|
1st Ward .............
|
338
|
2nd Ward .............
|
197
|
3A Ward ..............
|
278
|
3B Ward ..............
|
173 986
|
District No. 4:
|
Lead,
|
4th Ward .............
|
162
|
5th Ward .............
|
274
|
6th Ward .............
|
264
|
Terraville ................
|
53
|
Golden Gate ...............
|
16 769
|
District No. 5:
|
Terry .....................
|
28
|
Cheyenne ...................
|
9
|
Bear Gulch ................
|
31
|
Elkhorn ...................
|
14
|
Englewood .................
|
19
|
Galena ....................
|
17
|
Hanna .....................
|
14
|
Mountain Meadow ...........
|
32
|
Nemo .....................
|
149
|
Portland ..................
|
30
|
Roubaix ...................
|
39
|
Savoy ......................
|
4
|
Underwood .................
|
17
|
Pluma .....................
|
22 425
|
----
|
-----
|
Total .................
|
4,097
|
"In the selection of the above districts, the Board has
given consideration to the question of administration and
have chosen the districts with a view of giving proper
representation
to the various citizens of the County and to the
Agricultural, Mining, Timbering and Commercial sections
thereof."
Thereafter
some seventeen taxpayers of said county residing in Spearfish
made written demand upon the state's attorney of said
county to take an appeal from the action of the board of
county commissioners with reference to redistricting; such
demand being made under that portion of section 5886, R. C.
1919, reading as follows: "* * * Provided, that any
states attorney, upon written demand of at least seven
taxpayers of the county, shall take an appeal from any action
of the board of county commissioners, when such action
relates to the interests or affairs of the county at large or
any portion thereof, in the name of the county, when he deems
it to the interest of the county so to do; and in such case
no bond shall be required or given, and upon serving the
notice provided for in the following section the county
auditor shall proceed the same as if a bond had been filed,
and his fees for making the transcript shall be paid as other
claims by the county."
The
state's attorney, not deeming it to the interest of the
county to take the appeal demanded by said taxpayers,
notified them of his unwillingness to do so by the following
letter addressed to them and their attorney:
"Gentlemen:
"I have carefully examined the petition requesting an
appeal from the action of the Board of Commissioners changing
the boundaries of the commissioner districts in Lawrence
County, as contained in the resolution adopted on January 13
1932, and examined the law and facts relative thereto.
"The law provides that the State's Attorney shall
take an appeal upon the proper petition 'when he deems it
to the interest of the County so to do.' The power
thereby vested in the States Attorney is not a personal right
to decide whatever way he may wish, but is quasi judicial and
must be exercised in the light of and governed by the law and
facts of the case.
"The law provides (section 5864) that when changing
boundaries of commissioner districts, with certain exceptions
not material here, two things are to be considered by the
Commissioners. First, each district shall be as regular and
compact in form as it is practicable; and second, each
district shall contain as near as may be, within one hundred
of the same number of votes. Under this statute our Supreme
Court has held (Codington County v. Board of Comm.
199 N.W. 594) 'that if an incorporated city should
contain one-fifth the population it should constitute one
district and have one commissioner. If such city should
contain two-fifths of the population, it should comprise two
districts and have two commissioners.' This rule was
quoted with approval in a later case in the Supreme Court
(State v. Scott, 227 N.W. 972 [572]) and as a result
of that decision the City of Sturgis, without other or
additional territory, was established as one commissioner
district and given one commissioner. Under the rule of law
thus established the City of Lead is entitled to two
commissioners and the City of Deadwood to one commissioner,
Lead having more than two-fifths of the voting population and
Deadwood having more than one-fifth the voting population.
This leaves the balance of the population and territory in
Lawrence County, including the town of Spearfish which is not
affected by the above rule, it having considerably less than
one-fifth the population of the county, to be divided as
equitably as possible with due consideration for the
compactness and regularity of districts and the number of
votes therein contained.
"Large areas of this remaining territory are separated
by impassable mountainous country. Different interests and
needs exist; the chief industries in the southerly territory
being mining and timbering, and the chief industries in the
northerly territory being agricultural. It is practically
impossible to divide this territory so
...