Bon Homme County Farm Bureau v. Board of Com'rs of Bon Homme County

• Decision Date: 14 July 1928
• Docket Number: 6234.
• Citation: 220 N.W. 618,53 S.D. 174
• Parties: BON HOMME COUNTY FARM BUREAU v. BOARD OF COM'RS OF BON HOMME COUNTY.
• Court: South Dakota Supreme Court

220 N.W. 618

53 S.D. 174

BON HOMME COUNTY FARM BUREAU v. BOARD OF COM'RS OF BON HOMME COUNTY.

No. 6234.

Supreme Court of South Dakota

July 14, 1928

Appeal from Circuit Court, Bon Homme County; A. B. Beck, Judge.

Petition by the Bon Homme County Farm Bureau against the Board of County Commissioners of Bon Homme County. The judgment by the circuit court reversed an order of the Board rejecting the petition, and defendants appeal. Affirmed.

Campbell J., dissenting.

Wm. F Hansen, of Scotland, and Payne & Olson, of Vermilion, for appellants.

C. C Puckett, of Tyndall, and Wicks & Quinn, of Scotland, for respondent.

POLLEY J.

This appeal grows out of an order made by the county commissioners of Bon Homme county on the 13th day of July, 1925, refusing to make an appropriation of $2,500 to carry on agricultural extension work in that county.

It appears from the record that the Bon Homme County Farm Bureau is a corporation organized under the provision of sections 7951, 7952, R. C. 1919; that on or about the 1st day of July, 1925, the Bon Homme County Farm Bureau filed with the county auditor of said county the certificate provided for by section 7955, as amended by chapter 9, Laws 1925; that on the 7th day of July, 1925, there was filed with said board of county commissioners a petition signed by more than one-fourth of the electors of said county, requesting said board to appropriate $2,500 to be used for the purpose of carrying on agricultural extension work in said county. This petition was rejected by the board, and, from the order rejecting the same, an appeal was taken to the circuit court. Upon a trial in the circuit court, the decision of the county commissioners was reversed, and judgment entered directing the commissioners to make the appropriation as prayed for in the said petition. From this judgment the commissioners appeal to this court.

In appellant's brief, filed in this court, is the statement that it is conceded that this matter came before the circuit court on an appeal, from the resolution of the board of county commissioners, perfected by the farm bureau as appellant, and it is also conceded that:

"The only issue for determination in this section was whether the term 'shall,' used in subdivision 2 of section 7955, as amended by chapter 9 of the Session Laws of 1925, is mandatory in its terms, or whether it is merely advisory, and whether or not under said statute the board of county commissioners have any discretionary power in acting upon it."

In order to understand the meaning of the word "shall" as used in subdivision 2 of section 7955 as amended, it is necessary to examine said section as it was prior to the amendment. Under the provisions of the said section before it was amended, a farm bureau could file with the county auditor a certified copy of its articles of incorporation, together with a petition signed by the president and secretary of such association, asking for an appropriation for agricultural extension work. It then became the duty of the board of county commissioners to make such appropriation; but it does not appear to have been the intent of the Legislature to make it mandatory upon the board to make the appropriation, for it is then provided that, if the board fail to make the appropriation, the farm bureau may file a petition signed by one hundred or more of the free-holders of the county praying that the board submit the question of the appropriation to the electors of the county. Upon the filing of this petition, it became the duty of the board to submit the proposition of the appropriation to the electors of the county at the next general election. If a majority of those voting on the question voted in favor of the appropriation, it became the duty of the board to make the appropriation, and it is very clear that no further discretion was vested in the board; an affirmative vote on the question made it mandatory upon the board to make the appropriation.

Subdivisions 1 and 2 of section 7955, R. C. 1919, as amended by chapter 9, Laws 1925, read as follows:

"1. After the incorporation of any such county agricultural extension association under the provisions of this chapter, and the filing with the county auditor of a certified copy of its articles of incorporation, and after the secretary and treasurer of said association have certified such facts to the board of county commissioners of its respective county which certificate shall be filed with such board of county commissioners, the said board of county commissioners may appropriate from the general fund of the county such sum as may be needed to carry on the agricultural extension work in said county, which sum shall not exceed three thousand dollars ($3,000.00) per annum, except in counties composed of over thirty (30) congressional townships, there may be appropriated not to exceed one hundred dollars ($100.00) per township.

2. After the incorporation of any such county agricultural extension association under the provisions of this chapter, and the filing with the county auditor of a certified copy of its articles of incorporation, and after the secretary and treasurer of said association have certified such facts to the board of county commissioners of its respective county, which certificate shall be filed with such board of county commissioners, and after the filing by said officers of the said association with said board of county commissioners of a petition of twenty-five (25) per cent. of the electors of the county as shown by the vote for governor at the last preceding election, which petition shall be filed with said board of county commissioners on or before the first Wednesday after the first Tuesday in July of any year, the said board of county commissioners shall appropriate from the general fund of the county a sum not less than twenty-five hundred dollars ($2,500.00) per annum, and not more than three thousand dollars ($3,000.00) per annum, to carry on the agricultural extension work in said county, except in counties composed of over thirty (30) congressional townships there may be appropriated not to exceed one hundred dollars ($100) per township."

It will be noted that the first six lines of both subdivisions are the same. If the provisions of subdivision 1 are complied with, the board is authorized to make the appropriation, but it is clear that the matter of making the appropriation is...