Barnum v. Ewing

• Decision Date: 23 June 1928
• Docket Number: 6691
• Citation: 220 N.W. 135,53 S.D. 47
• Parties: E. G. BARNUM, Plaintiff and appellant, v. D. O. EWING, et al., Board of County Commissioners, Respondents.
• Court: South Dakota Supreme Court

53 S.D. 47

220 N.W. 135

E. G. BARNUM, Plaintiff and appellant,

v.

D. O. EWING, et al., Board of County Commissioners, Respondents. South Dakota Supreme Court Appeal from Circuit Court, Tripp County, SD Hon. J. R. Cash, Judge File No. 6691—Affirmed P. A. Hosford, Winner, SD Attorney for Appellant. C. E. Talbott, Windsor Doherty, Winner, SD Attorneys for Respondents. Opinion filed June 23, 1928

CAMPBELL, J.

This matter is before us upon an order to show cause, issued pursuant to affidavit and application of appellant for leave to amend his printed brief filed herein by inserting the following words: “The court erred, in making and entering the order and decision dismissing the appellant’s appeal to the circuit court, which order appears at pages 20, 21 of this brief.”

It appears from the showing of appellant’s counsel that the brief as filed contains no assignment of error by reason of his inadvertence and oversight, and that the one assignment of error which he desires leave to insert raises all questions involved in this appeal and presents the questions which were argued in the court below and which are argued in the briefs of both parties filed herein. No counter showing or appearance in opposition to appellant’s application is made by the respondents, and we are satisfied, under the circumstances, that justice requires that the application for leave to amend be granted, and it will be so ordered.

This case is on our calendar for submission without oral argument, and all briefs are filed. While the case has not yet been reached in its regular order for submission on the merits, it has nevertheless been necessary for us to go into the matter at some length at this time in order to determine the propriety of granting leave to amend, and we think that the time of the court will be conserved if we now proceed to treat the amendment as made and determine the cause upon the merits instead of waiting until it is reached in its regular order and then finding it necessary to duplicate at least a part of the time we have now spent in refreshing our recollection as to the fact situation and the issues involved.

The appeal really presents but one question, which is stated by appellant in his brief in the following language:

“Can a taxpayer and citizen of a county appeal from a decision of the board of county commissioners redistricting the county into commissioner districts under the provisions of section 5886 of the Code of 1919?"

The facts are that the board of county commissioners of Tripp county, at its regular January, 1928, meeting, pursuant to section 5864, Rev. Code 1919, providing for re-establishment of commissioner districts in counties in January, 1920, and every four years thereafter, “whenever such change shall be necessary in order that each district shall be as regular and compact in form as is practicable,” proceeded to change the boundaries of the three commissioner districts in said county. Within the time required by law, appellant, together with twelve other tax payers of Tripp county, made written demand upon the state’s attorney of said county to appeal from such action of the board of county commissioners, but the state’s attorney refused so to do. After such refusal, and within the statutory time for appeal, appellant himself sought to appeal from such action of the county commissioners to the circuit court. Thereupon the defendant commissioners moved in the circuit court to dismiss such appeal “on the ground that appellant was not a party aggrieved and had no right of appeal and that the court had no jurisdiction of the appeal.” This motion was granted by the learned trial judge, and, from the order dismissing his said appeal to the circuit court, appellant has perfected his appeal to this court.

Section 5886, Rev. Code 1919, with reference to appeals from decisions of boards of county commissioners, reads as follows:

“From all decisions of the board of county commissioners upon matters properly before it, there shall be allowed an appeal to the Circuit Court by any person aggrieved, upon filing a bond with one or more sureties to be approved by the county auditor, conditioned that the appellant will prosecute the appeal without delay and pay all costs that he may be adjudged to pay in the circuit court; such bond shall be executed to the county and may be sued in the name of the county upon breach of any condition therein; provided, that any state’s 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.”

It has been established by this court that the word “decisions” in the first line of this statute must be limited to determinations quasi judicial in nature. Codington County v. Board of Commissioners, 212 N.W. 626. It is also true that, where a board of county commissioners undertook to change district boundaries at a time when they were not authorized by statute so to do, this court permitted their action to be reviewed by certiorari at the instance of a relator, who alleged no special interest in the matter beyond being “a resident taxpayer and elector” of the county in question. Van Den Bos v. Board of Commissioners (1898), 76 N.W. 935. In the instant case, however, all parties concede that the matter of redistricting was properly before the board and that the board was acting within its jurisdiction, although appellant claims it acted erroneously because it failed to comply with that part of section 5864, Rev, Code 1919, which requires that the board “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,” etc. All parties further concede that the determination of the board with reference to this matter was quasi judicial in its nature, and this court has so held. Codington County v. County Commissioners (1924), 199 N.W. 594. The case last cited is not only authority for the proposition that action by the board with reference to redistricting within the scope of its jurisdiction is quasi judicial in nature and is appealable, but it is also authority for the proposition that such action “relates to the interests or affairs of the county at large,” and is appealable by the state’s attorney in the name of the county upon written demand of at least seven taxpayers, as provided in the second part of section 5886.

The instant appeal, however, is sought to be taken by plaintiff alone under the first part of section 5886, providing for appeals “by any person aggrieved.” Appellant does not claim to stand in any other or different position from any other resident taxpayer or elector of the county or at least from any other such person in his commissioner’s district, and he states his qualifications as a party appellant and his grievance in the following language in his appeal to the court below:

“That this complainant and appellant now is, and for more than fifteen years last past has been, a taxpayer, elector, and freeholder of Tripp county, S. D., continuously. That this appellant feels aggrieved by reason of the said redistricting of the said county...