Bon Homme County v. Berndt

• Decision Date: 01 April 1902
• Citation: 90 N.W. 147,15 S.D. 494
• Parties: BON HOMME COUNTY v. BERNDT et al.
• Court: South Dakota Supreme Court

90 N.W. 147

15 S.D. 494

BON HOMME COUNTY v. BERNDT et al.

Supreme Court of South Dakota

April 1, 1902

Appeal from circuit court, Bon Homme county.

Action by Bon Homme county, S. D., against Friedrich Berndt and another. From a judgment for the plaintiff, the defendants appeal. Affirmed.

Elliott & Stilwill and French & Orvis, for appellants. Andrew G. Lehr and W. T. Williams, for respondent.

CORSON J.

This case was before this court at a former term on an appeal from an order sustaining a demurrer to the complaint, and is reported in 13 S.D. 309, 83 N.W. 333, 50 L. R. A. 351. The decision of the trial court having been reversed, an answer was subsequently filed by the defendants, and the case is now before us on an appeal from an order sustaining a demurrer to the answer. The facts are quite fully stated in the court's former opinion, and need not be repeated here. The answer of the defendants, after making certain denials and admissions, alleges, in substance, that the insane hospital mentioned in the complaint is one of the charitable institutions of the state, and is under the control of the state board of charities; that since the adoption of the constitution of this state an appropriation has been regularly made by each legislature of the state, and an insane tax has been regularly levied by the state board pursuant to statute, for the support of the said insane hospital, which tax has been levied upon the property of the defendant Berndt, in common with other property, and annually paid in the same manner as other state taxes; that said taxes were levied and collected annually, and have been actually paid out upon warrants drawn upon the state treasurer for the maintenance of said hospital; that pursuant to the provisions of chapter 79, Laws 1891, the board of charities of this state has fixed the sum to be paid per month for the care of patients in the said hospital, and the superintendent of said hospital has certified to the state auditor the amount not previously certified to him as due under the law, and the said state auditor has thereupon passed the same to the credit of the hospital for the insane, and the county of Bon Homme has also levied and collected the tax provided for annually, and paid the same over to the state treasurer; that the amount levied and collected upon property by the board of county commissioners of Bon Homme county pursuant to the provisions of said act constitutes double taxation for one and the same purpose, and said tax has been paid annually upon the property of the said Berndt, in common with other property in said county and state; that defendant Berndt together with other taxpayers, has already twice met the taxation for the support of the insane of the state of South Dakota; and that the law of 1895 under which this action is brought, seeking again to compel him to contribute to the same end because of his insanity, is unconstitutional and void.

Objection is taken to the form of the demurrer interposed in this case which will be first noticed. The demurrer is substantially as follows: "Now comes the state's attorney, and, passing paragraphs 1, 2, and 3 of the answer, demurs to the new matter contained in the remaining paragraphs of said answer, and, for ground of the demurrer, alleges that it appears upon the face of the answer that such new matter therein contained does not constitute a defense to the plaintiff's cause of action set out in its complaint." Section 4918, Comp. Laws, provides that the plaintiff may in all cases demur to an answer containing new matter, where upon its face it does not constitute a counterclaim or defense; and the plaintiff may demur to one or more of such defenses or counterclaims, and reply to the residue of the counterclaims. While the demurrer in this case is not strictly formal, we think it is sufficient to raise an issue of law as to the new matter alleged in the answer. This new matter, as we have seen, presents a number of defenses, but yet so connected that it would be somewhat difficult to set them out as separate defenses, and the defendants have failed to so distinguish them. We are of the opinion, therefore, that the court properly overruled the defendants' objection to the hearing of this demurrer.

As will be noticed, the defense or defenses set out in the answer are, in effect: First that the law of 1891 providing that counties shall defray the expenses of their insane at the state insane hospital is unconstitutional and void, for the reason that such hospital is a state institution, and should be, and is, supported at the expense of the state, and that the state has in fact levied taxes each year for its support; and, second, that the law of 1895 is unconstitutional and void for the reason that the defendant Berndt, as a taxpayer of Bon Homme county, has not only paid the state tax levied for the support of the...