Pierre Water-Works Co. v. Cnty. of Hughes

• Decision Date: 24 February 1888
• Citation: 5 Dak. 145,37 N.W. 733
• Parties: Pierre Water-Works Co. v. County of Hughes.
• Court: South Dakota Supreme Court

37 N.W. 733

5 Dak. 145

Pierre Water-Works Co.

v.County of Hughes.

Supreme Court of the Territory of Dakota.

February 24, 1888.

Appeal from district court, Hughes county; L. K. Church, Judge.C. E. De Land, for appellant. C. J. Crawford, for respondent.

TRIPP, C. J.

This case comes to this court on appeal from the order of the district court in and for Hughes county, dismissing an appeal from the decision of the board of county commissioners of that county, sitting as a board of equalization in the matter of the assessment of plaintiff's property for taxes. The board of county commissioners of Hughes county met at the county-seat on the first Monday of July, 1886, as provided by statute, and convened as a board of equalization, and adjourned to July 14, 1886. Upon the last-named day, said commissioners, as a board of equalization, proceeded to equalize the tax assessment of that year, and, among others, they raised and fixed the assessment of this plaintiff at $20,000. To this action of the board the plaintiff demurred, and claimed that the value of said property was not greater than $2,100, and that it should be equalized and assessed at that sum, and no more; and from the decision of the board fixing the assessment at $20,000, and declining to reduce the sum, the plaintiff took an appeal to the district court of Hughes county. The appeal coming on to be heard in the district court, the respondent moved to dismiss, upon the ground that the decision appealed from was a decision of the board of equalization, and not a decision of the board of county commissioners, and that no appeal lay therefrom to the district court. The court sustained this position of respondent, and dismissed the appeal for want of jurisdiction, from which order an appeal has been taken to this court; and the question presented is, does an appeal lie from the decisions of the board of equalization to the district court in matters of assessment? And this presents two questions for our determination: (1) Is the decision of the board of equalization a decision of the board of county commissioners? (2) If so, is the decision in this case such a decision, within the meaning of the statute, as may be appealed from?

As to the first question presented, it is conceded by appellant that there is no statute giving an appeal from the board of equalization as such, and that, an appeal being purely a statutory remedy, unless the appeal is authorized by the statute allowing an appeal from “all decisions of the board of county commissioners upon matters properly before them,” (Pol. Code, c. 21, § 46,) the district court was without jurisdiction, and its judgment must be affirmed. The court below held that the board of equalization was a board separate and distinct from the board of county commissioners, and that, while it was composed of the same individuals, its powers and duties were separate and distinct, and that its decisions and determinations, if reviewable at all, were not reviewable upon appeal. The question, while an important one to the tax-payer as well as to the profession, is purely a statutory one, and its determination depends entirely upon the construction to be given the statute creating and constituting the board of equalization. The position of respondent, that the distinctness and independence of these tribunals does not depend upon the fact whether they are composed of the same or different individuals, and that such fact established would not “unify the functions or powers of the two,” is undoubtedly correct. It is no unusual thing that the same person holds separate and distinct offices, with separate and distinct powers, and that his acts and decisions while exercising the one office are wholly independent of his acts and decisions done and made while exercising the other. A slight change in the phraseology of the statute which permits or authorizes the same person to exercise different functions of the same office, or to fill separate offices at the same time, may make his acts separate and independent of each other,-the acts of different officers,-or may make them all the acts of one officer exercising different powers and jurisdictions. The legislature may confer the duties of several officers upon one, or may subdivide the duties of any office, and confer such duties upon different officers, or create separate and distinct offices for each class of duties, as it may see fit. There are no inherent duties appertaining to any office which may not be changed at the will of the legislative body. It may provide that the probate judge shall perform the duties of county treasurer, and that the register of deeds shall be clerk of the county board, as appears from the early legislation of this territory, and it may do this by providing that such officer may exercise such duties ex officio, or it may require such duties to be performed by him in his one official capacity, where not restrained by some constitutional provision or organic law. The court must therefore look to the wording and phraseology of the statute in each particular case in determining whether the legislature intended to create two offices, each to be exercised separately by the same individual, or whether it intended to impose upon one officer the additional duties of another office. This court held in County v. Simonsen, 1 Dak. 403, where Simonson had given bond “to well and faithfully and impartially perform the duties and execute the office of probate judge,” and had never given any bond as treasurer of the county, that he was held on such bond for his default as treasurer; the statute at that time making the judge of probate the treasurer ex officio of the county. This was upon the principle just enunciated that, notwithstanding the statute recognized the office of treasurer as a distinct one by using the words “ ex officio,” yet the effect of all the statutes, when considered together, was to impose upon the probate judge the duties of treasurer, and that, therefore, a default in those duties was a default in his duties as probate judge. The question, then, recurs, did the legislature intend to create a separate and distinct tribunal of the board of equalization, or did it intend to confer the duties of the board of equalization upon the board of county commissioners? The general powers of the board of county commissioners are enumerated in the statute of this territory as follows: “Sec. 29. They shall have power to make all orders respecting property of the county, to sell the public grounds of the county, and to purchase other grounds in lieu thereof. *** (2) They shall have power to levy a tax not exceeding the amount now authorized by law, and to liquidate indebtedness.

(3) To audit the accounts of all officers having the care, management, collection, or disbursement of any money belonging to the county, or appropriated for its benefit. (4) To construct and repair bridges, and to open, lay out, vacate, and change highways; to establish election precincts in their county, and appoint the judges of election, and to equalize the assessment roll of their county, in the manner provided by law. (5) To furnish the necessary blank-books, blanks, and stationery for clerks of the district court, county clerk, register of deeds, county treasurer, and probate judge of their respective counties, to be paid out of the county treasury; also a fireproof safe, when in their judgment the same shall be deemed advisable, in which to keep all the books, records, vouchers, and papers pertaining to the business of the board. (6) To do and perform such other duties and acts that boards of county commissioners are now, or may be hereafter, required by law to do and perform.” Pol. Code, c. 21.

It will be observed that extensive powers are intrusted to this board,-legislative, administrative, executive, and quasi judicial; and among these enumerated powers is the power to “equalize the assessment roll of the county.” At first reading, the statute seems so clear that there is little room for doubt that the duty of equalizing the assessment of taxes is expressly conferred upon the board of county commissioners. Shelter for argument against this plain enumeration of the duties of the board is first sought in the words, “in the manner provided by law,” and it is contended that other provisions of the statutes which refer to the “board of equalization” have provided a manner of exercising this jurisdiction, to-wit, by authorizing the individual commissioners to act as a board of equalization; and, in support of this argument, the attention of the court is called to the fact that the statute granting these powers of the commissioners commences with the words, “they shall have power,” etc., instead of, “the board of county commissioners shall have power,” etc.; and that the words, “they shall have power to equalize the assessment roll of the county in the manner provided by law,” must be taken to mean that the individuals composing the board of county commissioners shall have power, when sitting as a board of equalization, to equalize the assessment roll of the county. A hasty glance at chapter 21 of the Political Code, prescribing the duties and powers of the county commissioners and other officers of the county, will show that the word “they” is constantly used for and in lieu of the “board” in nearly every section wherein the duties and powers of the board are enumerated. Section 18 begins: “The county commissioners shall meet and hold sessions for the transaction of business at the courthouse in their respective counties.” Section 19 reads: “At the first meeting of the county commissioners in each and every year, they shall elect one of their number chairman.” Section 21: “When the board of county commissioners are equally divided on any question, they shall defer the decision until the next meeting of the board.” Section 23: “The board of county commissioners shall...