Champion v. Bd. of Cnty. Comm'rs

• Decision Date: 13 February 1889
• Citation: 5 Dak. 416,41 N.W. 739
• Parties: Champion v. Board of County Commissioners.
• Court: South Dakota Supreme Court

41 N.W. 739

5 Dak. 416

Champion

v.Board of County Commissioners.

Supreme Court of the Territory of Dakota.

Feb. 13, 1889.

Appeal from district court, Minnehaha county.

Burton H. Champion obtained a writ of certiorari against the board of county commissioners of Minnehaha county, to test the validity of their action in calling an election under the local option law. From an order dismissing the writ plaintiff appeals.C. H. Winsor, for appellant. A. A. Polk and H. H. Keith, for respondents.

TRIPP, C. J.

This is a special proceeding by certiorari, wherein the plaintiff obtained from the district court of Minnehaha county a writ against the board of county commissioners of that county, and the county clerk thereof, to certify up the records and proceedings of said board, wherein it decided to call an election under the “local option law” of 1887. The affidavit of the plaintiff upon which the writ issued is very full, and is set out verbatim in the record. The writ recites the allegations of fact relied upon as evidenced by the affidavit, and is as follows: “Whereas, it has appeared to us by the affidavit of B. B. Champion that lately, before you, or a majority of you composing at the time the board of commissioners of the county of Minnehaha, such proceedings have been had that you, or a majority, have irregularly, and without authority or jurisdiction in the premises, and without a petition having been presented to you, signed by at least one-third of the legal voters of the said county of Minnehaha, as shown by the last preceding general election, praying that the question of prohibition of the sale of intoxicating liquors be submitted to a vote of said county, and that you did order an election to be held on the 8th day of November, 1887, on said question; and whereas, B. B. Champion is shown by said affidavit to be a person beneficially interested in the result of said election, he being a person engaged in the retail liquor business in the city of Sioux Falls, in said county, and having property which will be greatly deteriorated in value if said election, so called by you, was regular and proper, and he, the said Champion, having deposited his money for a license to sell intoxicating liquors for the six months ending July 1st, in the year 1888, and having requested such license, and tendered a proper bond to the city council of the city of Sioux Falls, which license has been refused because the result of said election in the minds of the city council of Sioux Falls is doubtful, and for that reason alone, and having been restrained by an injunction from this court from selling intoxicating liquors; and whereas, it is alleged by said B. B. Champion that your proceedings therein have been irregular, without authority, and in violation of section 1 of chapter 70 of the Laws of Dakota passed at the seventeenth session of the legislature of said territory; and that, being willing that your proceedings in the premises and appertaining thereto should be certified and returned by you into our district court on the 14th day of January, 1888, at the court-house in the city of Sioux Falls, do command you,” etc. To this writ the commissioners made return, alleging, in substance, that a petition was presented to the board, a copy of which is made a part of their return, containing more than one-third of the legal voters of Minnehaha county, upon which an order was made calling an election as prayed for, and making a copy of the resolution and order of the board a part of their return. The board further returned that the list of the legal voters, as shown by the last preceding general election, upon which their action was based, was not in the custody of the board; whereupon the county clerk, N. E. Phillips, was made a party to the proceeding by leave of the court, and returned such list of voters as prayed for. The defendants thereupon, appearing specially, moved to dismiss the proceedings, and to quash the writ, upon the grounds which will be noticed hereafter; and the court thereupon, after reciting the issuance of the writ, the return thereof, the motion of defendants, and argument of counsel, etc., ordered, “that a writ of certiorari heretofore granted in this matter in the application of B. B. Champion be, and the same is, set aside, dismissed, and vacated.” From this order vacating the writ the plaintiff appeals, assigning as error that the court erred in dismissing the writ without a hearing upon its merits.

Sixteen reasons were assigned by the defendants why the writ should be dismissed. The prayer of the motion was granted. The order granting the motion does not specify upon which ground or grounds it was granted. From the recitation contained in, and from the words of, the order it was based upon some ground contained in the motion. It is therefore sufficient, if any ground upon which the motion was based will sustain the order. If it will not, the order must be reversed. It is not enough that a good ground could have been alleged upon which the order could have been sustained. Appellate courts hear causes and determine them upon the record made in the court below whenever jurisdiction of the person and subject-matter are shown to exist; and the question here is, ought the court to have entertained the writ as against the reasons urged by the defendants to quash it? This can only be determined by examination of the reasons alleged seriatim:

“ First. It does not appear that the said board of county commissioners have exceeded their power of jurisdiction, nor do the matters stated in the affidavit for the writ have any tendency to establish such a fact.” That the board did not exceed their jurisdiction is the very question the court was asked to try. It could not determine such a question by dismissing the writ. The writ alone gave the court authority to determine the jurisdiction of the board. When it dismissed the writ, it dismissed with it the jurisdiction to determine the question before it. The statement of the proposition is axiomatic, and contains its own argument.

“ Second. That the affidavit and writ wholly fail to show on their face any case in which such writ ought to issue.” That the writ failed to show on its face any cause for its issue could no doubt have been raised in this way; but the proper manner would have been to point out to the other side in what way it failed to make a case. Courts are in the habit of dismissing such motions as containing the very fault alleged against the other side. Such motions are in the nature of pleas in abatement, and are presumed to give to the other side the material for a better writ. To say “that the affidavit and writ wholly fail to show on their face any case in which such writ ought to issue,” conveys to the court and to opposite counsel reasons but little more definite than that the writ ought to be set aside because it ought to be set aside; and an assignment of grounds to vacate a process of court containing no other specification ought to be disregarded. As no point, however, has been made by counsel as to this assignment, we will pass it now; and, if any reason of counsel for affirming the order appealed from can be referred to this ground, we will consider it subsequently.

“ Third. The writ is in other respects informal, defective, and insufficient.” This is but a repetition of the second reason, without the merit even of cumulation.

“ Fourth. The writ is not issued or directed to the proper tribunal, board, officer, or person having custody of the record, or proceedings to be certified.” No point seems to have been made upon this ground. It was issued, first, to the board; and, second, to both board and clerk, and both made return of all the records upon which the decision was based.

“ Fifth. That the powers and functions of the board, to whom such writ is directed, in regard to the matters therein referred to, have ceased.” It is difficult to know just what was meant by the allegation that “the powers and functions of the board have ceased.” The powers and duties of the board never cease so long as there is a board. The members may change, the individuality of the board may change, but the board remains the same. If it is meant that the control of the board over this very particular subject-matter has ceased, the same is true of every executive and administrative body when it has performed an executive or administrative duty; and even of the judgment of courts, after the term at which the judgment was rendered has elapsed. Every executive and administrative act is final after the formalities by which it is performed are complied with. Yet courts have power to affirm, modify, or reverse such acts, and they affirm, modify, or reverse even the judgments of inferior courts over which the original tribunal has long lost control. Our statute of certiorari fully contemplates this as provided by section 692, Code Civil Proc. “If a return of the writ be defective, the court may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming, or annulling, or modifying the proceedings below.” When such judgment is remitted to the tribunal whose action is reviewed, the judgment of the court merely stands in place of the original decision, and subsequent proceedings had thereon will be governed accordingly.

“ Sixth. That said writ is not entitled or properly directed.” The writ, in so far as it is set out in the abstract, runs in the name of the territory of Dakota, as required by section 8, Code Civil Proc., and is directed to the board of county commissioners. No point being made upon this by counsel at the argument, we give it no further notice.

“ Seventh. Neither the affidavit nor writ state any facts tending to show that B. B. Champion is a party beneficially interested, so as to entitle him to...